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Can My Spouse and I Use the Same Divorce Attorney?

August 2, 2014 | Mark Spencer Williams | Divorce & Separation, Ethics, Family Law | No Comments

Screwed

We often get telephone calls asking whether a divorcing couple can use the same attorney for their divorce.  The short answer is NO!

It is a violation of the lawyer’s rules of ethics to represent both husband and wife in a divorce.  The interests of the parties are directly adverse to each other and there is no possible way for the attorney to competent, diligent representation to both.  The American Association of Matrimonial Lawyers states that “An attorney should not represent both husband and wife even if they do not wish to obtain independent representation.”

Even if husband and wife have reached an informal agreement regarding the issues of their marriage and solely desire that a lawyer or mediator draft their agreement, it is not possible for one individual to do this without favoring one party over the other.

For example, suppose that husband has a pension and the lawyer has been asked to draft an agreement that divides the pension equally between the parties.  The lawyer knows that the agreement can be drafted to provide survivorship benefits for the wife in the event of husband’s death but in doing so it will reduce the monthly amount husband will receive before his death.  Without including the clause giving survivorship benefits, the Wife may get nothing upon Husband’s death.  Even bringing this issue up to both parties may cause Husband to lose something or the deal to unravel.  Its impossible for the lawyer to discuss the pros and cons with both parties and help them reach a decision about this issue and be loyal to both.

Clients are entitled to attorneys they can trust to act with commitment and dedication to their interests in their legal matters.  Its simply impossible for an attorney to advise both Husband and Wife.

No attorney in the State of North Carolina can ethically represent both Husband and Wife in a divorce.

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Retroactive Child Support

July 29, 2014 | Mark Spencer Williams | Child Support, Family Law | No Comments

Child Support HearingThe North Carolina Court of Appeals decided the case of Loosvelt v. Brown, ___ N.C.App. ___ (2014) on 15 July 2014. Mr. Grant Loosvelt, a California citizen, brought a lawsuit against Ms. Stacy Brown for child custody and to establish his child support obligation. Ms. Brown brought counterclaims including one for retroactive child support. The trial court awarded over $7,000.00 per month in child support along with almost $40,000.00 in retroactive child support including in excess of $5,000.00 in pre-birth nursery expenses and maternity clothes.

The Court of Appeals addressed the issue of retroactive child support and clarified the law on what expenses can be recovered before a child’s birth. A parent’s obligation to pay child support arises when the child is born. However, a parent may be obligated for “medical expenses incident to the pregnancy and birth of the child.” N.C. Gen. Stat. § 49–15.

A parent can seek retroactive child support for child support prior to the filing of a complaint. However, the Statute of Limitations (N.C. Gen. Stat. § 1-52(2)) limits a parent to no more than three years of retroactive support. The parent seeking retroactive child support must present sufficient evidence of past expenditures made on behalf of the child, and evidence that such expenditures were reasonably necessary.

If you are filing an action for child support, be sure to talk with your lawyer about making a claim for retroactive support.

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A DIY Divorce Is a Bad Idea!

July 23, 2014 | Mark Spencer Williams | Divorce & Separation | No Comments

Today I watched men and women one by one trying to get a District Court Judge to grant them a divorce without the help of a lawyer.

Just Divorceprior to this, attorneys put their client’s on the witness stand, asked a few questions and got their clients divorced in just a few minutes.  Attorneys also handled summary judgment motions where the clients did not even appear before the judge but the divorces were granted.  Perhaps as many as 10 divorces done in less than 25 minutes.

And then came the Pro se litigants.  Pro se is a Latin phrase meaning “for oneself.”  When someone represents themselves without a lawyer in court, they are acting pro se.  

These pro se folks were visibly nervous.  When their name was called, the bailiff asked for copies of their divorce judgments and copies of their divorce certificate.  If they did not have them, they were asked to leave.  If they had them, the Judge would review them.  At this point, nearly 4 of 5 were turned away because the paperwork was not in proper form.  One of the gentlemen who sought a divorce protested to the Judge that this was his “second time” trying to get the divorce after having been there a few weeks ago.  After reviewing his paperwork and finding it deficient, this man learned he would have to come again next week for a “third time.”

Another person could not finalize the divorce because the Separation Agreement and Property Settlement that was requested to be incorporated into the Divorce Judgment was not in the file.

In my opinion, the Judge properly handled these pro se folks.  Some of their questions:  If the Separation Agreement is not in the file, can I go ahead and just get divorced without having it incorporated?  Judge:  I know the answer to that but I can’t answer because that would be giving you legal advice.  I suggest you speak with a lawyer.  And that was the right answer from the Judge.  This simple decision to incorporate or not could have significant positive or negative implications for the person seeking the divorce.

But the bigger issue is I saw individuals obtain a divorce who most likely had not filed an action for spousal support or equitable distribution.  And when they thought they had “won” by obtaining that divorce, the truth is that they had lost big because by failing to bring these claims before the entry of the divorce they had forever waived their right to alimony and distribution of marital property (including pensions, military pensions, etc.).

While our Firm has posted information about a DIY Divorce, we strongly recommend you hire a lawyer instead to ensure you preserve your rights.

By hiring an attorney you may save yourself thousands of dollars simply by protecting your rights.  You may also feel less nervous in court, may not even have to take time off from work to show up for court,  and are far less likely to have to show up for court on more than one occasion.

 

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Urban Farming: Fresh Eggs Could Result in New Headaches

May 3, 2014 | Richard Forrest Kern | Civil Law, Family Law, Land use, Zoning law | No Comments

As the local and regional food shed movement and the urban agriculture movements continue to grow, land uses once considered only for rural landscape are now sprouting up in urban and suburban communities. From nuisance law to zoning regulations; your desire to raise your own chickens for eggs or plant your own corn may require the advice and counsel of an attorney to help jump the hurdles.

A growing trend in the United States and North Carolina is farming by private landowners. Rural and urban landowners are doing more home gardening and backyard farming. Whether you are planting veggies, raising chickens for eggs or using goats for milk, there may be some legal problems with your farming endeavors.

  • Why are more people growing their own vegetables or raising their own chickens for eggs or dinners? There are several reasons why someone might want to farm;
  • Whether it is true or not, some people believe raising their own food is cheaper. It can be but it is not always cheaper;
  • Health is another reason; avoiding insecticides, herbicides, genetically engineered produce, and pesticides is a major reason for farming your own food;
  • Chicken eggs from your own chickens just taste better, so does a pork chop from your own pig and squash from your own garden; and
  • Farming can be used as a learning activity for children and a family bonding activity.

No matter what you are farming or why you are farming, there are many legal issues you need to keep abreast of when home farming:

Local zoning laws and ordinances: Many municipalities have restrictions on which and how many farm animals you may keep on your residential property. N.C. Gen. Stat. § 160A-186 grants power to municipalities to regulate or ban “domestic animals,” inside their jurisdictional limits. According to the grant of power a city may regulate, restrict, or prohibit the keeping, running, or going at large of any domestic animals, including dogs and cats. However, cities and towns that once banned outright chicken and other livestock are now reversing course. Raleigh, Durham and Chapel Hill all allow chickens. The Town of Carrboro allows chickens and goats. The Cary Town Council has authorized town staff to research and draft a proposed ordinance allowing up to eight hens on residential property. However, some communities still ban urban livestock. Check your local laws and zoning ordinances but be aware, some ordinances do not directly ban home livestock production but instead rely on a specific interpretation of their own ordinances to justify a de facto ban. Hire an attorney to review the ordinances with you and to determine if you may be qualified to seek a variance, special use permit or other legal avenue to meet your need to farm and the legality of your locality

Building laws and ordinance:. Building codes and/or ordinances may prevent you from building a chicken coop, a corral, or a barn. There may be set back restrictions, there may be restrictions on the size or type of building you can build for your animals. There may be types of construction methods that are not allowed. Again, see out a licensed attorney in your area to determine if there is an issue with your property and whether there is any recourse for you.

Home Owner’s Associations: HOA rules may ban you from keeping animals or even a garden on your property.

Nuisance and attractive nuisance: Before there were zoning laws and continuing through today, many opponents of urban farming focus on nuisance suits. They institute lawsuits over their concern about noise, odors, diseases, and sanitation problems stemming from improper care and maintenance of livestock. They also raise the argument that with urban livestock there is an increase of natural predators in the area that feed on them. Proponents of urban farming say that the keeping of livestock has benefits outweighing the potential negatives: in the case of chickens; pest control; free fertilizer for home gardening; egg production for home consumption; and the fun of a family pet. The urban farmer argues that chickens and goats and even pigs are not as loud and disruptive as dogs, odor is easily controlled with proper cleaning and no more concern than the odor of traditional pets. The Center for Disease Control has stated that it is safe to maintain small numbers of chickens at home. Arguments against urban livestock with respect to trespassing and destruction of property are without merit as they will be subject to animal control laws just like any other family pet and a well-designed coop or pen along with the urban environment will prevent predators from considering the area a buffet.

An attractive nuisance is something that poses a danger to children and lures them onto another’s property and into the danger. According to the Restatement of Torts section 339, which is followed in some jurisdictions, there are five conditions that must be met for a land owner to be liable for damages to a child trespasser. The five conditions are:

  1. The place where the condition exists is one on which the possessor knows or has reason to know that children are likely to trespass, and
  2. The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children;
  3. The children, because of their youth, do not discover the condition or realize the risk involved in inter-meddling with it or in coming within the area made dangerous by it;
  4. The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
  5. The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

Swimming pools are classic attractive nuisances and as a result many cities and towns have ordinances that require fencing around them to prevent children from trespassing.

Children love animals, so, for the urban farmer, making sure the animals are properly penned is a must and will go a long way to protecting one’s self from such lawsuites. Otherwise, if a child comes onto your property and gets hurt you will be placing yourself at risk for a civil lawsuit.

Check your local ordinances for other permitting requirements and licenses.

No matter your goals for your backyard farm, make sure you follow the rules for your property otherwise you may find out that backyard chickens cost more than they are worth. If you need an attorney to review with you your local rules and restrictions with respect to your backyard farm, please call an attorney licensed in your jurisdiction. If you live in North Carolina, please feel free to call Rice Law, PLLC, we can review the ordinances and rules of your locality in North Carolina and help you determine the viability of urban farming in your locale.

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Pets of Rice Law

September 17, 2013 | Mark Spencer Williams | Family Law | No Comments

Boxer Dog

Our team loves animals.  In fact, at times we bring them to work with us.  We thought we would share some pics of our “extended family”

To see a slide show of all of the pets, follow this link: Pets of Rice Law, PLLC

 

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New Law Allows Stronger Waiver of Alimony

July 5, 2013 | Richard Forrest Kern | Divorce & Separation, Family Law, Prenuptial, Property Distribution, Separation Agreement, Spousal Support | No Comments

There are three basic types of marital contracts in North Carolina – Pre-nuptial agreements, Post-nuptial agreements, and Separation Agreements. Most people know what a Separation Agreement or Pre-nuptial agreement is, which is not to say that there are not misconceptions regarding each, but they each are familiar within the context of popular culture.

 

Post-nuptial agreements, however, are not as common. In North Carolina for many years, Husbands and wives have been able to contract with each other during the marriage regarding matters that are not inconsistent with public policy. Traditionally, contracts which waived or released a dependant spouse’s right to Alimony were considered against public policy. Hence, post-nuptial agreements were limited in this respect and often considered inferior to separations agreements which could address every issue. For this reason, even when the parties intended to attempt reconciliation, post-nuptials were not seen as a way to address all the couple’s issues.

 

There has been a recent change to that tradition. Amendments to N.C. Gen. Stat. §§ 52-10; and 50-16.6(b), make it a little easier to settle all issues between a married couple during a brief period of separation – a trial separation in common vernacular. Couples who have separated but intend to work on their marriage and attempt reconciliation can now address all their marital legal issues if they so desire. This can have the effect of calming the emotions between them and create an environment in which the parties can focus on each other and their marriage instead of arguing over contentious issues. Couples still cannot violate public policy but no longer will a waiver, release, or establishment of post separation support, alimony, or spousal support be considered invalid and inconsistent with public policy and reconciliation will no longer destroy a valid waiver, release, or establishment of support in a post-nuptial agreement.

 

If you and your spouse have decided to separate while still working on your marriage, Rice Law, PLLC, can help you understand, negotiate or draft your post-nuptial agreement to protect your interests. Give us a call.

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Gun Ownership and Child Custody

December 19, 2012 | Mark Spencer Williams | Child Custody & Visitation, Divorce & Separation, Family Law | No Comments

HandgunIn the wake of the horrible tragedy at Sandy Hook Elementary School in Newton, Connecticut, the National debate has intensified on gun control. As an attorney, we sometimes hear concerns of a parent about the “ex” spouse’s firearms.

If a domestic violence action with merit is filed under North Carolina law, the Court will routinely require the defendant to surrender his or her firearms to the Sheriff and that gun-ban may stay in effect for years (if not for life).  In fact, such an order could cause you to lose your job or be discharged from the military.

Even when domestic violence is not an issue, however, the Court can consider firearms as one factor among many in determining which parent should be awarded custody. In a child custody case, everything that has the potential to impact the safety and well-being of a child is fair game.  Pediatric groups have recommended that physicians ask parents whether they keep guns at home, and discuss gun safety with those that do in order to prevent shootings involving children. In 2009, according to the CDC, nearly 400 children younger than 15 were killed by firearms.

In a case decided in 2004 by the North Carolina Court of Appeals, the Court considered the fact that the father was a gun collector who had eleven firearms, who kept his firearms with him even when he ran errands with the children and according to the mother, slept with a loaded firearm under his pillow.

As part of the Court’s order, it found that “Father shall not own or possess any firearms until the children are emancipated, or until further order.” Martin v. Martin, 167 N.C. App. 365, 367, 605 S.E.2d 203, 204 (2004).

The Court of Appeals overturned the order because the trial court had not made any findings that the children were endangered by the guns or that their safety was somehow affected by gun ownership.  Had the court found that possession of the guns somehow endangered the children, the restriction would have likely been upheld.

While this appears to be the only appellate case directly on point, we deal with this issue at the trial level frequently.  In our experience, judges in child custody cases have not negatively affected gun owners who demonstrate to the Court that firearms are used and stored responsibly thereby ensuring that the child is safe and secure.

But since this issue is “fair game” and since there is a real danger to children from firearms that are improperly stored or left loaded within reach, any parent involved in a child custody dispute who also has firearms should strongly consider the following:

  • Discuss the issue with your attorney
  • Make sure the firearms you own are legal and registered (if required)
  • Keep them locked up in a firearm safe so they are not accessible to children
  • Take photographs showing safe storage
  • Document any formal gun training you have had
  • Consider getting Affidavits (and live testimony if need be) of others you have hunted with or been to the gun range with that can attest to your safety habits and responsible gun use.
  • Consider storing your guns at work or at a friend’s house

 

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Holiday Survival Guide for Divorced Parents

December 12, 2012 | Mark Spencer Williams | Child Custody & Visitation, Family Law | No Comments

We look forward to holidays because it is time we can spend with family.  So what happens when that family is being split as a result of divorce?  We surveyed the blogs on the subject and suggest the following to help you make it through the holidays this year.

Last year, Katia Hetter, with CNN wrote an article with specific suggestions to survive the holidays for divorced parents. Hetter’s article, Holiday Survival Guide for Divorced Parents, notes that divorced parents face the challenges of negotiating holiday custody schedules, battles over presents, new significant others and simply the pain of being apart.

Bari Weinberger authored, 6 Ways Divorced Parents Can Get More Time With Their Children During the Holidaysin the Huffington Post and her suggestions range from just asking to hosting a sleep over so your ex can ring in the New Year.

And a recent article, Navigating the Holidays After a Recent Divorce, published by the Chicago Tribune offers suggestions for bringing blended families together during the holidays after a recent divorce.

Based upon the experience of our clients, we offer a few tips of our own:

  • Focus on the kids
  • Set a specific custodial schedule
  • Communicate
  • Co-Parent

What tips do you have?

 

 

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“A Good Lawyer Knows the Law but a Great Lawyer Knows the Judge”

December 11, 2012 | Mark Spencer Williams | Civil Law, Civil Procedure, Divorce & Separation, Ethics | No Comments

JudgeThis phrase is often quoted in a humorous manner to depict the legal profession. It certainly can have different meanings. At worst, it implies that the law is subservient to personal relationships and that a judge will give different decisions based upon who stands before him or her making the same argument. While North Carolina has in fact seen misconduct among the judiciary (see In re: Denise S. Hartsfield  as one recent example), the instances of such misconduct are rare.

It is misconduct for an attorney to seek to influence a judge by a means prohibited by law, to communicate ex-parte with a judge (some exceptions apply) or to even imply that they can influence the judge through some personal relationship (See the North Carolina Rules of Professional Conduct). And it is also incumbent upon judges to maintain integrity and independence. In fact that is “rule 1” of the rules for judges (See the NC Code of Judicial Conduct) and judges who become aware of inappropriate conduct of lawyers must initiate disciplinary action against them.

However, I don’t see this phrase in a negative light. In fact, I believe that the judges we appear before remain on the bench because they are committed to helping the citizens who elected them to serve. And I understand it to mean that the “great lawyer” is the one who:

  • Knows the Local Rules;
  • Knows the Local Customs;
  • Uses the Local Forms;
  • Knows the Manner in Which the Judge prefers to Hear Evidence;
  • Knows the Time limits for various hearings;
  • Knows the Judge’s Pet Peeves;
  • Knows the Background of the Judge; and
  • Knows how the Judge May Likely Rule on an Issue.

An attorney who aspires to know the judge in these ways is better prepared for Court and can better communicate the legal argument because he/she “knows the audience.” In this sense, the phrase is quite appropriate and professional and builds up our profession rather than tearing it down. Therefore, the quote rings true and it is our duty as lawyers — as professionals — to know the judge before whom we practice.

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North Carolina Protects South Carolina Marriages Too

December 10, 2012 | Mark Spencer Williams | Alienation of Affection, Family Law | No Comments

On 4 December 2012, the North Carolina Court of Appeals affirmed a Mecklenburg Trial Court’s decision to allow a case to proceed by a South Carolina Plaintiff against a South Carolina Defendant for alienation of affection and criminal conversation.

Daniel Monroe Smith filed a Complaint against Jerry Mason Drumm in the Superior Court of Mecklenburg County in October 2010 claiming that Jerry seduced, enticed and alienated the affections of Daniel’s wife, Sandra, from him.  Daniel sought monetary damages from Jerry based on allegations of adultery for alienation of affections and criminal conversation. At the time the lawsuit was filed, both Daniel and Jerry lived in South Carolina.

Daniel and his wife Sandra had been together for seventeen years, five as husband and wife.  Prior to their marriage, Sandra and Jerry (the Defendant) had been high school sweethearts and had been engaged to be married.

Beginning in March 2009, when Sandra was visiting her mother in a Mecklenburg County Hospital, she allegedly began an affair with Jerry in the State of North Carolina.  At that time, Jerry was married and living in Charlotte.  In July 2009, Jerry moved to South Carolina.

Jerry filed Motions to Dismiss the lawsuit for various reasons including that he did not believe the North Carolina Courts had jurisdiction over him since he lived in South Carolina and that North Carolina should not be concerned with protecting the marriage of South Carolina’s citizens — a state where these torts have been abolished.

The Court of Appeals ruled that since the affair began in the State of North Carolina and because Jerry lived in the state at the time the affair commenced, the lawsuit against him could proceed.  The full decision is available as Smith v. Drumm (COA 12-492).

The decision, while unpublished, is important because many have suggested that the purpose of these torts are to protect the sanctity of marriage for North Carolinians and therefore a case such as this where there are no North Carolinians to protect would allow the Court to clarify the scope of these torts. For now, it appears that N.C. will protect S.C. marriages too.

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