For me it is a time of togetherness. When I was a boy, we travelled to my Great Grandmother’s house to see extended family and enjoyed a big meal. For about thirty years, we have held the celebration at my mother’s home and as many as forty family members would attend – many flying in from great distances to attend. The holiday was always marked by huge portions of my favorite foods, lively philosophical discussions and several hands of Canasta.

Our family also held hands to say grace and each person was expected to say what they were thankful for over the past year. The most often cited was “family” but there were also the funny, inspiring and serious expressions of gratitude. By asking yourself what you are thankful for, you make a positive attitude adjustment and switch from the thought process of “what is missing in your life” to appreciation for what you have.

Even during the Great Depression, our nation gave thanks to God “for the blessing of life itself and the means to sustain it, for the sanctuary of home and the joys that pervade it, and for the mercies of His protection from accident, sickness, or death.” It is no different in 2011. During the midst of record foreclosures, high unemployment, and nationwide protests, we stop as a nation to give thanks to God.

Fundamentally, it is healthy to be thankful and to spend time with our family – even when they get on your nerves. Our families hold the key to fully understanding ourselves, our roots and our values.  The stories that are told from generation to generation help us understand our past.  We create and preserve family traditions and family values by spending time with family.  These individuals are often our most loyal and biggest supporters when things go wrong.  Therefore, we hope that you have given thanks for the blessings of life and spent your time with family this Thanksgiving holiday!

“A certificate of service shall accompany every pleading and every paper required to be served on any party or nonparty to the litigation, except with respect to pleadings and papers whose service is governed by Rule 4. The certificate shall show the date and method of service or the date of acceptance of service and shall show the name and service address of each person upon whom the paper has been served.”

The purpose is to show unto the Court that the other party was actually served with the order and how it was served.

Within our Rules of Civil Procedure, there are many deadlines.  You only have 10 days after an order is filed to request a new trial under Rule 59; there are certain time limits under Rule 60 to request a new trial and you generally only have thirty days to file a notice of appeal.  Our Court of Appeals has found that the time for filing a notice of appeal is tolled until a Certificate of Service is filed. See Rice v. Coholan, __ N.C.App. ___, 695 S.E.2d 484, 489-90 (2010).  The failure to include a Certificate of Service could possibly toll the period to file a motion for a new trial.  See Stem v. Richardson, 350 N.C. 76, 78, 511 S.E.2d 1, 2 (1999).

So if you have court orders that have no certificate of service, that could be a problem in the future or a possible “loophole” if you have missed a deadline to complain of the order you received.

The article notes that the veracity of the story was not verified.  In it, the husband claims he loaded the app, “Find My Friends,” to his wife’s iPhone without her knowledge or consent. The application uses the iPhone’s built-in Global Positioning System to broadcast its location to a selected group of friends.  By enabling the GPS broadcast without his wife’s knowledge or consent, had he been in North Carolina, it could conceivably be a breach of privacy actionable under tort law (although there are no current appellate cases on this issue in North Carolina).

We expect these type of technology issues — especially whether it is an invasion of privacy — to become more prevalent in family law cases over the next few years.

Read the full story at Yahoo News.

Living in the same house cannot be “separate and apart.”  In Richardson v. Richardson, 257 N.C. 705, 709, 127 S.E.2d 525, 528 (1962), the North Carolina Supreme Court found that even though husband and wife had become estranged, they were not legally separated because they continued to live under the same roof.  The North Carolina Court of Appeals has stated that “separation, as this word is used in the divorce statutes, implies living apart for the entire period in such manner that those who come in contact with them may see that the husband and wife are not living together.” Ponder v. Ponder, 32 N.C. App. 150, 153, 230 S.E.2d 786, 788 (1977).

The North Carolina Supreme Court has also found that even when husband and wife had lived in separate rooms for five years and had discontinued all sexual relations for more than two years, they were not legally separated.  See Dudley v. Dudley, 225 N.C. 83, 85, 33 S.E.2d 489, 490 (1945). Cessation of sexual relations does not alone constitute a separation. Lin v. Lin, 108 N.C. App. 772, 775, 425 S.E.2d 9, 11 (1993).  In fact, after the parties do separate, “isolated incidents of sexual intercourse” do not constitute a reconciliation such that the one year waiting period has to start over. And this makes sense because the public policy of North Carolina dictates that we want people to stay married and if they can’t date for the purpose of trying to reconcile, it would discourage attempts at reconciliation.

It has long been established in North Carolina that a married couple living in the same house and holding themselves out as man and wife cannot be deemed to have separated.  Oakley v. Oakley, 54 N.C. App. 161, 162, 282 S.E.2d 589, 590 (1981).

In one unpublished case, after the parties actually separated by living separate and apart, a husband was allowed to move into a separate apartment that was locked off from the rest of the house and the Court did not find that this constituted a separation.  See Lange v. Lange, 164 N.C.App. 779, 596 S.E.2d 905 (2004).  It is my opinion, however, that the Court upheld this arrangement because the husband had lived away from the house for a period of time before he returned to live in the apartment.

In conclusion, to be legally separated in North Carolina, you can’t live in the same house.  You must live under different roofs and one of you must form the intent to no longer live as husband and wife.

The problem with the lawsuit was that Robert Bell and James Mozley are both citizens and residents of Beaufort, South Carolina.  James filed motions to dismiss the law suit for lack of jurisdiction. These motions were denied and James appealed to the North Carolina Court of Appeals and won. The Court of Appeals handed down its decision on 1 November 2011 finding that North Carolina does not have jurisdiction over the two South Carolina residents’ dispute.

The Court held that the torts of alienation of affection and criminal conversation are designed to protect the institution of marriage for North Carolina residents and when the torts occur in the State of North Carolina.  In this case, neither Robert nor James are residents of North Carolina and Robert could not prove that James had sex with Lisa in North Carolina.

Robert Bell and his wife, Lisa, had invited James Mozley and his wife to spend New Years with them at their second home in Blowing Rock, NC in 2006.  Sometime after that, Robert Bell discovered vaginal lubricant and unexplained telephone calls.  While he could later prove sexual relations between his wife, Lisa, and former friend James Mozley in four other states (South Carolina, New York, Hawaii, and California), he fell short in his proof regarding North Carolina.

Since South Carolina has abolished the torts of alienation of affection and criminal conversation, Robert Bell’s race to file suit in North Carolina smacked of forum shopping to our Court of Appeals. For the full decision, read it here.

To learn more about the heart balm torts of alienation of affection and criminal conversation, read about them here.

Court Orders obtained “Ex-Parte” represent a decision of a judge made without the presence of all parties to the controversy.  When a Plaintiff, the person initiating the lawsuit, files the lawsuit, that spouse (or usually their attorney) can approach a judge and ask the judge to enter “Ex-Parte” orders. Common “Ex-Parte” orders include orders regarding the custody of a minor child, injunctions, sequestration orders, and restraining orders.

If the Plaintiff makes allegations that a minor child is exposed to a substantial risk of bodily injury or sexual abuse or that there is a substantial risk that the child may be abducted or removed from the State of North Carolina for the purpose of evading the jurisdiction of North Carolina, the Court can enter an Ex-Parte Order on Child Custody that changes the normal living arrangements of the minor child.

Injunctions are often entered Ex-Parte to prevent the sale, destruction or waste of marital property. Sequestration orders may be entered Ex-Parte to grant an exclusive right of use of a former marital residence to one spouse to the exclusion of another.  Restraining orders may be entered Ex-Parte when there are allegations of regarding specific assets and debts and the use thereof or allegations of domestic violence.

Normally, an attorney’s obligation is solely to their client and only presents their client’s side at a hearing. In an “Ex-Parte” proceeding, however, an attorney’s ethical obligations require the attorney to inform the judge of all material facts known to the lawyer to enable the judge to make an informed decision whether or not the facts are adverse.

After the entry of any “Ex-Parte” order in a family law case in North Carolina, a hearing must generally be held within ten days to allow both parties to present facts and allow the judge to determine whether the order issued “Ex-Parte” should remain in full force and effect, be vacated or modified.

The term “Ex-Parte” is also used to refer to improper contacts with a Judge without notice to the other party or counsel for that party — usually those that occur after the filing of the initial lawsuit.  Once a lawsuit has already been filed, a party and their attorney cannot generally have “Ex-Parte” communications with a judge with some exceptions.

An example of an improper “Ex-Parte” communication made national news in 2009 when a North Carolina judge and an attorney communicated by Facebook regarding an on-going child custody case.   Judge Terry of Iredell County was reprimanded by the NC Judicial Standards Commission for the contact via Facebook.  To prevent the appearance of impropriety, some states (e.g., Florida, Oklahoma) have banned it and others have issued ethical opinions regarding it.

But “Ex-Parte” does not have to be over Facebook, it can be any communication where one party or their lawyer speaks with the judge without the presence of the other side.

While “Ex-Parte” is sometimes appropriate and ethical — especially at the outset of a lawsuit to obtain needed orders, it brings significant risks for the attorneys and the judge.

On a national level, domestic violence costs employers $5-8 billion annually. As a business leader, it negatively impacts productivity, morale, absenteeism, healthcare costs, and the bottom line. For the past seven years, the Business Community Action Team of EVOLVE Wilmington! has been working with several New Hanover County employers on tackling this problem head-on.

EVOLVE Wilmington! and Verizon are co-sponsoring a workshop on 27 September 2011 for employers.  The half-day workshop discussing specific tactics on how you can protect your bottom line. Topics will include: How domestic violence affects the workplace Safety and security Awareness and education Employee support measures Accountability and legal issues

The workshop’s keynote speaker will be Johnny Lee, the founder of Peace at Work. Mr. Lee is the developer of the Employment and Domestic Violence Matrix which is currently used around the world to show how employment is a protective factor for Domestic Violence prevention. He has conducted a research study on over 500 cases of domestic violence assaults that have occurred in the workplace and has also authored the book, Domestic Violence in the Workplace.

For more information, or to register to attend, please email Rick Houston or call him at 910-343-9969, Ext. 22.  A continental breakfast will be served.

As a precursor to the workshop, Telling Amy’s Story, a video on domestic violence, will be shown on Monday, September 26 at 7:00 p.m.in UNCW’s Lumina Theater located in the Fisher Building. This film documents the timeline of a domestic violence homicide that occurred in central Pennsylvania in 2001. It is narrated by the detective who led the case review and documents the many opportunities where those around Amy—including her employer—might have gotten involved or sought help. Following the film a panel discussion will be held to allow local leaders to discuss how our community is – or should – respond to the issue.

Both events are free and open to the public.

Sarah Files for Divorce and John Keeps the Majority of the Money

John worked for a company for many years and had built up a 401(k) worth three hundred thousand dollars. His wife, Sarah, filed an action against him for an absolute divorce using some forms she found online. When John came to me for legal advice, we made a list of the property that he and his wife acquired during the marriage.

• Former Marital Home [Joint] $ 245,000
• Mortgage [Joint] ($ 175,000)
• 401(k) [John] $ 300,000
• His Car [John] $ 14,000
• Debt on His Car [John] $ 0
• Her Car [Sarah] $ 18,000
• Debt on Her Car [Sarah] ($ 8,000)
• Checking Account [Joint] $ 2,300
• Net Marital Estate $ 396,300

If either filed for equitable distribution and the Court agreed that the above listing accurately represented the property acquired during the marriage, it would be presumed equitable for each side to get property worth ½ the overall value or $198,150 each. However, if a divorce occurs without each side properly preserving their claim for equitable distribution then property vests based upon title. Therefore, under the facts above, John would keep his 401(k) and car worth $314,000 and Sarah would keep her car and the debt on her car worth $10,000. The joint property would be held as tenants in common with each having an undivided interest in the whole. John could sue Sarah after the divorce to divide the house with $70,000 in equity and potentially have a total of $349,000 (1/2 the equity in the house plus the 401(k) and car) while Sarah would only get $45,000 total. In theory, the checking account could also be divided through a petition to partition personalty but it probably would not be worth the cost. So it is to John’s advantage to get divorced without suing for equitable distribution. Actually, he comes out better by over one hundred and fifty thousand dollars!

Very little of it was jointly titled and most of it was in John’s name. The 401(k) like most retirement plans was solely in his name. My advice for his particular case was “let her get the divorce and then we will file a petition to partition the real property.”

The entry of a divorce judgment forever cuts off claims for the division of marital property (equitable distribution) and spousal support (post separation support and alimony). The failure to specifically apply for these rights prior to the entry of a divorce judgment acts as a waiver of these rights and they are lost forever. North Carolina law, N.C. GEN. STAT. § 50-11(e), states that “an absolute divorce obtained within this State shall destroy the right of a spouse to equitable distribution.” To preserve claims for equitable distribution and alimony, a valid claim must be asserted before entry of the divorce.

So be careful when filing for divorce in North Carolina. It is worth it to consult with an attorney and determine the best option for your particular situation. A simple divorce could cost you hundreds of thousands of dollars! It also cuts off alimony rights and if John would owe Sarah alimony in the above hypothetical, she would be in even worse shape!  In this case, Sarah made a huge mistake.