Articles Posted in Today’s Divorce Climate

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Dear Carolyn,

Triad parent here, contemplating divorce, but I feel compelled to stay together for the children.  The children are ages ten and twelve.  However, the marriage is quite bad; we argue all the time.  We never do anything together, and sex—forget that.  I work, and my wife does not work.  Can you give me any insight into considerations for whether I should stay in the marriage for the children, or at least until they are in college?  I want to do what is best for the children.  I am miserable.

Miserable

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Jennifer A. Crissman, Attorney, Woodruff Family Law Group

            In Part 1, we discussed that proving Cohabitation in North Carolina is not an easy task. There have been multiple North Carolina Court of Appeals cases where the dependent spouse and new flame had been dating for years, were blending finances, were vacationing together, and living together as much as five days a week; yet the Court found there was no cohabitation. The most important thing to keep in mind when trying to prove cohabitation to the court is your evidence.

When the Court reviews the evidence of cohabitation, it will engage in a two-part test. If the objective evidence of cohabitation does not conflict with other evidence, the court does not have to consider the subjective intent of the dependent spouse and new romantic interest. However, if there is conflicting objective evidence, then the Court must look to the subjective intent of the dependent spouse and new romantic interest. Bird v. Bird, 363 N.C. 774, 688 S.E.2d 420 (2010).

Examples of objective evidence of cohabitation includes externally verifiable phenomena, such as bank statements in both parties’ names, joint lease agreements, joint utility bills, cell phone records and text messages showing communications between the parties, emails between the parties alleged to be cohabiting, photographs of the parties together, or investigative reports detailing the movements and actions of the parties alleged to be cohabiting.

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Benjamin N. Neece, Attorney, Woodruff Family Law Group

A special trait that all attorneys must possess is the ability to guide their clients through the litigation process. Rule 7 is one of the most basic, yet vitally important rules in structuring a case and proceeding through various twists and turns that are encountered along the path to favorable outcomes. Rule 7 is technical and provides guidelines that in some instances, even the Court does not have the power to manipulate. North Carolina Attorneys involved in all areas of litigation are strongly advised to take special heed regarding Rule 7 as failure to do so can bog down your case proceedings.

When meeting with your attorney, you will often hear common phrases such as “complaints,” “answers,” “replies,” etc. This very well may be one of the few times that common English meaning of words are directly applicable to the words your attorney is saying. Legal lingo can be confusing, but rest assured, a complaint consists of your actual complaint (aka how you have been harmed/wronged). Rule 7 defines these documents as “Pleadings” and there are six “required” pleadings that you may encounter during the litigation process. Rule 7 flexes its proverbial muscles here as the Court does not have the power to waive or enforce their filing, nor can the court create “new” pleadings. Each of the “required” pleadings are not necessarily required in all instances of litigation, but luckily the process progresses in sequential order, meaning –  one must be filed before another becomes required. Despite the seemingly straightforward nature of Rule 7, having an attorney handy is necessary in the drafting, execution, and submission of these documents because a failure to properly file a required pleading can be very harmful to your case.

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By: Leesa M. Poag, Attorney, Woodruff Family Law Group

 

Whether you are the Plaintiff filing a lawsuit or the Defendant being served with one, one of the most important things for a family law attorney in Greensboro and across the state to keep in mind are deadlines imposed by rules and statutes in North Carolina.  Rule 6 of the North Carolina Rules of Civil Procedure sets the guidelines as to how we compute time in North Carolina.

In computing any period of time in a lawsuit, the day of the act that begins the running of the time period is not included.  For example, when you are served a summons and complaint for divorce, you have thirty days to respond.  If you are served on May 1st, the thirty days would not start until May 2nd, the day following the act that started the running of the time period.

The last day of a time period is typically included. However, if it is a Saturday, Sunday, or a legal holiday when the Courthouse is closed, it is not.  So if your period of time to respond to a complaint is set to expire on July 4th, you don’t have to leave your cookout to file your answer.  The period to answer would be extended until July 5th, or the next business day when the Courthouse is open.

If you need more time to respond to a pleading or other paper that you have been served, you can request that the Court grant an extension to your deadline. This is typically accomplished by filing a Motion for Extension of Time with the Clerk of Court, and it can be done at any time before the deadline expires. This allows the deadline to be extended for thirty additional days.  These extensions are typically granted freely as long as they are timely filed with the Clerk of Court. Continue reading →

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By: Jennifer A. Crissman, Woodruff Family Law Group

If you are going through a separation and divorce in North Carolina, one topic that always arises is the dreaded “A” word: Alimony. No one wants to be responsible for supporting their soon to be ex-spouse, and if they are going to be responsible for that support, they want to know what can make the obligation (i.e. nightmare) end.

In North Carolina, several circumstances will terminate the alimony payments: the death of the supporting spouse, the death of the dependent spouse, or the remarriage or cohabitation of the dependent spouse. The death of either party or the remarriage of the dependent spouse are pretty clear in their definitions, but there is some confusion about what exactly is considered cohabitation. Although statute defines cohabitation, the facts and circumstances of each case determine whether cohabitation has truly occurred.

A discussion of the elements of cohabitation follows, but at the outset, it is important to understand the reasoning of why cohabitation terminates Alimony. It may seem that it is to punish the dependent spouse or to keep the dependent spouse from having a dating life after their marriage ends, but this is not the case. The North Carolina Court of Appeals in Setzler v. Setzler, 781 SE2d 64 (NC App., 2015) explained that terminating alimony due to cohabitation is not punishment of the dependent spouse, but rather is a financial consideration. The Court reasoned that if the dependent spouse has entered into a serious relationship that implicates their finances, they could be avoiding marriage in bad faith to keep the alimony coming. With that in mind, let us turn to the elements of cohabitation.

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Benjamin N. Neece, Attorney, Woodruff Family Law Group

               In 2017, communities exist both in the physical and virtual world. Whether you call a metropolis like Greensboro, or a small town such as Asheboro, home, there exist reasonable limits to the extent you will interact with certain individuals, the peer groups you will associate with, and how information will be transmitted. In the virtual world, those limitations are effectively eliminated and with that, an increased risk when it comes to revealing what would otherwise remain personal information. It is important for clients to understand the dangers that exist in regards to their cases when maintaining an active social media presence.

A divorce is probably one of the most difficult and emotional experiences may experience. There will be times when emotions may get the best of an individual, and there seems to be no way to express yourself and attain the peace that you seek, and often individuals may resort to releasing their emotions over social media. Whatever the reason, using this medium to obtain peace of mind during this time can be very damaging to your case and reduce your chance of success at the conclusion of the process. A common theme amongst social media outbursts results in revealing too much information.

Revealing information may be intentional or unintentional, which is why it is very important to make sure you are consciously thinking about how the information you release is perceived by not only a casual bystander but by your estranged spouse and their legal counsel. People are attracted to drama, and if you are the source, then it can lead to more eyes beholding what you have released which lead to a wider dissemination of this information. Additionally, what you may think is harmless may be easily manipulated by a trained professional to paint a picture you never intended to portray. A great way to avoid this risk is to limit the amount of information you put out there; controlling the narrative is an essential part of any legal proceeding, especially in divorce.

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Benjamin N. Neece, Attorney, Woodruff Family Law Group

The information gathering stage of the legal process is commonly referred to as the “Discovery Process.” Discovery is generally guided by Rule 26 of the Federal Rules of Civil Procedure and is the way that information is gathered by associated parties to litigation. It is during this time that each party submits various requests for information from adverse parties through a variety of common methods: interrogatories (questions), request for admissions, and request for production of documents.  While it is the hope of all parties involved that each party will, in good faith, cooperate with their requests for information, there are times when that is not the case and court intervention is necessary for proper recourse; enter: Rule 37.

Where a party has failed to comply with the discovery procedures set forth by court order, party ask for discovery may ask the Court for an order compelling the requested action.  Before such a motion may be entered, it must be indicated that the moving party has in good faith contacted the party failing to make the discovery to try and secure the information without court action.  This requirement supports the keeping of unnecessary proceedings out of the court system and promoting judicial efficiency. If such a motion is granted the court will typically award reasonable costs incurred by the moving party and place the burden on nonmoving party; this burden is shifted if the court denies the motion unless there is a finding that such motion was substantially justified or other factors, make award of expenses unjust.  This is the most common form of award afforded by the courts, as in these circumstances the court is not trying to punish either party, they are merely incentivizing parties to comply with orders of the court.

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By: Jennifer A. Crissman, Woodruff Family Law Group

          Whether you are a North Carolina law student, newly admitted to the practice of law, or a layperson involved in a civil lawsuit, you will hear quite a bit about service, service of process and certificates of service. In previous blogs, we have reviewed the basics of Rules 4 and 5 of The North Carolina Rules of Civil Procedure, but for those just becoming acquainted with the Rules, it ‘s hard to differentiate which rule applies, and when. For those who are involved in a lawsuit, it is always best to hire an attorney who can answer your questions fully and advise you of your rights. However, as a way to learn more about Rules 4 and 5 let’s look at some scenarios, and how these Rules regarding service are applied.

Scenario 1 – I want to keep my lawsuit as amiable as possible. Can I just hand all of the documents to the opposing party rather than getting a sheriff involved or mailing everything to them?

Yes, in theory, but it is ill-advised to do so with service of process. Rule 4 is all about getting personal jurisdiction over the opposing party so the court may enter orders in your case. Rule 5 is about giving appropriate notice to the opposing party of pleadings and other papers filed with the court. While both of these aspects are important, if you screw up service of process (serving the opposing party with your Summons and Complaint) your entire case can be dismissed for lack of personal jurisdiction. It is better to get the Sheriff to try to serve the opposing party so there is a neutral third party who can attest to the fact that the opposing party is properly served. With all subsequent pleadings, you can serve these by hand, but you must file a Certificate of Service with the Court to document this service.

Scenario 2 – My crazy ex has refused to move out of the house, even though I have asked her to leave. I want to serve her with a Complaint for Divorce from Bed and Board. Can I just leave it for her on the kitchen counter so I can avoid the extra drama?

No. Since this is a new filing Rule 4 will apply on how to serve the opposing party with the Summons and Complaint. It is important to remember that just leaving documents where the opposing party might find them is never proper under either Rule 4 or Rule 5.

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Leesa M. Poag, Attorney, Woodruff Family Law Group

While Rule 4 of the North Carolina Rules of Civil Procedure proscribes the method for the filing and service of the original complaint in an action, Rule 5 deals with the filing and service of orders, pleadings, and other documents that follow that initial complaint.

The purpose behind Rule 5 is to provide notice to the opposing party of the proceedings in the case, and to provide the opposing party an opportunity to be heard by the Court before any relief is granted in the case.

This rule provides for three methods of service – hand delivery, mail, or facsimile. Hand delivery is typically accomplished in open court, but can also be satisfied by delivering documents to the opposing party’s attorney. Service by mail is the most common method used if the opposing party is proceeding pro se.  Service by mail, it is important to note, is accomplished as of the date that the document is placed in the care of the United States Postal Service, not when the documents are received by the opposing party.  When serving by mail, the party is granted three additional days within which the opposing party must receive the documents. However, only if the documents are sent through the postal service is this the case, and does not extend to any overnight delivery services.  If a party is represented by counsel, service will often be accomplished through facsimile. Documents that are to be served via fax must be sent by 5pm on a business day.  If the document is sent after 5pm, it will be deemed to have been served on the following business day.  If there is a dispute as to the date of service, the fax confirmation report will be controlling to determine the date of service.  As such, this confirmation report should be attached to any documents that are served on opposing counsel by facsimile.

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Benjamin N. Neece, Attorney, Woodruff Family Law Group

“Behind the Bar” is a multi-part blog series that will focus on specific aspects of the practice of law ranging from the Rules of Evidence, Rules of Civil Procedure, and other important legal practice technicalities in an effort to provide readers a better understanding of regularly overlooked and misunderstood concepts that lawyers are faced with on a day-to-day basis. 

In our previous installment of “Behind the Bar” we touched on the first part of Rule 4: Service of process, and the requirements involving the “who” and “what” aspects of the rule. In this installment we will complete our review of Rule 4 by discussing the “when,” “where,” and “how;” relating to proper service of a Summons.

Proper service to a “natural person” can be attained by delivering a copy of the Summons and Complaint (S&C) to the individual personally, or leaving copies at the dwelling house or regular abode with “someone of suitable age/discretion residing therein.” It can also be accomplished by delivering a copy of the S&C to an agent authorized by appointment (an Attorney) or law to be served or accept service; mailing a copy by certified mail or registered mail, return receipt requested, addressed to party, and delivering it; or using a designated delivery service authorized under the law to effectuate process and obtaining a delivery receipt. There exist many other potential types of parties to legal proceedings, each requiring slight variations to the rule; but regardless of who the party to receive process is, Rule 4 provides many avenues to meet the requirements set forth therein.

Even in this day and age, with all the advantages of technology and information, the circumstance may arise where personal execution of service upon an individual is effectively impossible because they are unable to be located.  In this situation, where a party cannot, with due diligence be served by normal means, they may be served by publication.  Service by this means consists of publishing notice of service once a week for three consecutive weeks in a newspaper which is qualified for legal advertising which is circulated in the area where party to be served is reasonably believed to be located, or if that information is unknown, in the county where action is pending.  In either case, proof of service must be completed by means of submitting affidavits with the court showing that service was properly executed and where service was via publication, the affidavit must state why publication was necessary and proof of said publication.

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