Whether you are gay, straight, or upside down, the amendment appears likely to have little significant effect on your life if passed. Same-sex marriage is already not allowed or recognized by North Carolina and, under contract law, same-sex partners are now and will still be afforded many of the more meaningful protections enjoyed by married couples.

Voting against the amendment would not legalize same-sex marriage in North Carolina. Currently, same-sex marriage is not recognized in North Carolina and, as previously mentioned in another blog, the only significant protections in North Carolina for same-sex couples in the context of their cohabitation is contract law. It appears that those protections and actions under contract law that would allow same-sex couples to sue each other over property or other relationship related matters would remain unchanged. Even if the amendment is passed, same-sex couples will still be able to authorize each other to handle financial matters by executing a power of attorney, or appoint each other the decision-maker regard health care decisions if one becomes incapacitated through a health care power of attorney. Same-sex couples could still hold joint checking accounts and could still contract to provide for the protections many married people have in place. The protections allowed with respect to cohabitation rights and contract law are important to same-sex partners and married couples alike and, of course, both should make sure to execute and formalize those protections before an issue arises calling for those protections.

1. Consult a reputable divorce attorney

The cost of an initial consultation with an attorney who routinely handles family law matters can save you a significant amount of money. Before you discuss your situation with your spouse and make decisions, you need to know the legal landscape. You need to know what your rights are and what is normal in your situation. Follow the 10 steps to help you survive divorce. For example, I once had a client agree on the division of property with her husband without knowing that she had given up the marital portion of her husband’s pension worth several hundred thousand dollars.

2. Prepare for your initial consultation

Before you ever meet with an attorney, prepare relevant information regarding your assets, debts and ongoing financial obligations. Collect this information in advance and take it with you to your consultation.

3. Self educate

The more you can learn about the divorce process, the better. However, read information from reputable sources. Don’t listen to your non-lawyer friends for legal advice. While they may form a good support group, even if they went through a divorce their lawyer’s advice for them given their personal situation may not be appropriate for you. Don’t read information regarding other states. North Carolina law is unique. The Rice Law, PLLC Web site is one of the most informative sites on divorce law in North Carolina. Educating yourself will enable you to ask your attorney better questions, allow you to perform more of the legwork and reduce your overall costs.

4. Identify the legal issues

Your attorney can help you identify what claims you have and the counterclaims you need to defend. Once you have a clear focus on the issues at stake, you can isolate each and resolve them separately:

• Child Custody – This is often the most costly family law issue to litigate and the litigation itself can be destructive and traumatic. If you can work out a custodial arrangement for your child, you can save significant costs.
• Child Support – Once custody is determined, child support is normally determined by the NC Child Support Guidelines. You can calculate child support yourself. Sometimes, it is beneficial and necessary to deviate from the child support guidelines. Your attorney can help you decide when and if this should be done.
• Spousal Support – If you are seeking spousal support or defending a claim for spousal support, you need to download and complete the Financial Standing Affidavit (FSA). You also need to collect as many paystubs and receipts for expenditures as you can to support the entries you make. By performing this legwork, you will save yourself money and enable your attorney to better help you with this claim.
• Equitable Distribution – Download the Schedule of Assets and make a listing of all of your property. Once you review this listing with your attorney, you can sit down with your spouse and see if you can resolve the division of marital property. If you and your spouse can agree on the division, you can avoid litigation.
• Other – Your attorney can help you identify other claims/defenses

5. Avoid litigation

If you and your spouse can agree on even part of the issues, you can avoid court and enter into an agreement. This keeps your money in your pocket rather than giving it to a lawyer. Mediate, negotiate and settle if possible. By separating issues, you can enter into written agreements on what you can resolve (e.g., custody but not property, property but not custody) without having to try and broker an entire comprehensive settlement. Avoid litigation if possible to reduce costs. However, litigation is often necessary and desireable in some cases.

6. Consider the big picture

Divorcing couples often get carried away by emotion spending thousands of dollars fighting over a cusinart worth hundreds. Consider a logical cost-benefit approach to the actions taken in mediation and/or litigating your divorce. If it does not make legal and financial sense, then don’t do it!

7. Do as much as you can

Ask your attorney what you can do to reduce costs. If you can gather documents, prepare spreadsheets, make copies of trial notebooks, etc., you can reduce the legal fees associated with your divorce. You can also ask your attorney to provide unbundled services where you represent yourself while obtaining advice from an attorney regarding the forms to file and the approach to take. The scope of services can vary widely with unbundled services.

8. Don’t do it youself (DIY divorce)

A do it yourself approach can cost you dearly. I once represented a nice man. His wife decided to file her own counterclaims for his pension. The forms she filed were improper and I got her claims dismissed after the divorce whereby she was entitled to nothing. She lost hundreds of thousands of dollars by refusing to pay a few thousand for a qualified attorney.

9. Whine to your friends

Don’t call your attorney with every little concern you have about the opposing party. By doing so, you will be unnecessarily racking up attorney fees. Similarly, don’t forward every email exchange between you and your spouse. Sleep on it. If it is still important, spend time organizing your thoughts and write a letter to your attorney addressing your concerns. If you must call, call your attorney’s paralegal. It is cheaper to pay them to prepare the summary of your concern than the attorney.

10. Talk with your attorney about the appropriate fee arrangement

One size does not fit all. Don’t Assume a flat fee arrangement will save you money. In fact, a flat fee could cost you more than hourly billing. A flat fee arrangement may give the client the peace of mind of knowing that their costs are fixed but the fee could be more than you would have paid for hourly billing especially if the matter is quickly resolved. Likewise, hourly billing is not always the best approach. Rice Law, PLLC offers three billing options for our clients: unbundled a la carte services, flat fee, and hourly billing. We don’t force you into one option as we recognize that one size does not fit all.

Published December 6, 2009 | Authored by Mark Spencer Williams, Esq. and Managing Member, Rice Law, PLLC

There are a number of companies that purport to prepare documents that you can file to obtain a divorce in the State of North Carolina. Some even guarantee that your documents will be accepted by the Court. A brief Google search for “NC Online Divorce” immediately revealed four companies that claim they will prepare documents you can file for an uncontested divorce for less than $300. Of the four, all clearly disclaim that they do not provide legal advice.

Therefore, none can advise you on whether you should file for divorce and how devastating it could be to you if you do file for divorce without consulting with an attorney.

As one example, once you obtain a divorce in the State of North Carolina, you cannot file claims for property division (equitable distribution) and spousal support (alimony, post separation support). The four identified are briefly discussed below:

• North Carolina Divorce Online (northcarolinadivorceonline.com): It appears from their website that as of 1 September 2009, they charge $195 to prepare a Petition for Dissolution of Marriage, they do not handle “contested divorces,” and they expressly do not provide legal advice. [Note: Petitions are generally filed in Special Proceedings in the State of North Carolina and are not used to obtain a divorce. A "Complaint" is normally filed for a divorce; Rice Law, PLLC does not recommend you use an individual not licensed to practice law in the state of North Carolina to prepare legal pleadings].
• DivorceWriter (divorcewriter.com): This Seattle, Washington based company says “you can save money and time by completing your own divorce if you and your spouse agree on what to do with your assets and agree on the care of any minor children.” It appears they charge $149 to prepare documents for an uncontested divorce. They also expressly disclaim that they do not provide legal advice. [Note: Rice Law, PLLC does not recommend that you use an individual not licensed to practice law in the state of North Carolina to prepare legal pleadings.]
• CompleteCase (completecase.com): This Seattle, Washington based company disclaims that they don’t provide legal advice, they charge $249 to handle an uncontested divorce. [Note: Rice Law, PLLC does not recommend that you use an individual not licensed to practice law in the state of North Carolina to prepare legal pleadings.]
• LegalZoom (legalzoom.com): This Los Angeles, California based company disclaims it is not a law firm, does not provide legal advice, and charges $299 for a marital settlement agreement. [Note: Rice Law, PLLC does not recommend that you use an individual not licensed to practice law in the state of North Carolina to prepare legal pleadings.]

In addition to online services like those above, individuals sometimes seek help from another person, sometimes a paralegal, to help them prepare legal documents. The North Carolina State Bar says, “Sometimes individuals and businesses represent that they can provide legal services or help to prepare legal documents for members of the public even though they are not lawyers. They may be engaged in the unauthorized practice of law. Under North Carolina law, only licensed attorneys may provide legal services or prepare or help prepare legal documents for another person. The North Carolina State Bar is authorized to investigate and act on reports of the unauthorized practice of law.” For more information, see The North Carolina State Bar’s Web site.

In North Carolina, preparing a court document is the practice of law. See State v. Pledger, 257 N.C. 634, 127 S.E.2d 337 (1962), and N.C. GEN. STAT. §84-2.1. That statute says:

The phrase “practice law” as used in this Chapter is defined to be performing any legal service for any other person, firm or corporation, with or without compensation, specifically including the preparation or aiding in the preparation of deeds, mortgages, wills, trust instruments, inventories, accounts or reports of guardians, trustees, administrators or executors, or preparing or aiding in the preparation of any petitions or orders in any probate or court proceeding; abstracting or passing upon titles, the preparation and filing of petitions for use in any court, including administrative tribunals and other judicial or quasi-judicial bodies, or assisting by advice, counsel, or otherwise in any legal work; and to advise or give opinion upon the legal rights of any person, firm or corporation.

One of reasons for this prohibition is that practicing law is not just “filling out forms.” There are model pleadings for a divorce but completing such forms yourself or with the assistance of a non-lawyer can result more than just sloppy documents — it can result in a loss of your legal rights. The founder of this Firm is known to say, “Anyone can handle their own divorce. You can also perform brain surgery on yourself, but that doesn’t mean the patient will live.” Whether you use our online Virtual Law Office where we, licensed attorneys in the State of North Carolina, provide legal advice to clients and help them prepare the documents they need or use another attorney licensed in the state, use an attorney! We don’t recommend you do it yourself or use an unlicensed online service.

As an aside, we currently charge $200 for an online consultation to determine whether you should file for divorce and include other claims. If you only need a divorce, we will prepare the documents for you for any county in the State of North Carolina for no additional fee.

Rice Law, PLLC is not affiliated with any of the companies shown above. The information is believed to be accurate based upon representations on the companies’ Web sites. We do not recommend that any North Carolinian handle their own divorce without the advice and assistance of a lawyer licensed to practice divorce law in the State of North Carolina. We expressly do not endorse any online divorce service and make no representation regarding whether it is the unauthorized practice of law as that would be for the North Carolina State Bar to decide.

Published September 20, 2009 | Authored by Mark Spencer Williams, Esq. and Managing Member, Rice Law, PLLC

Black’s Law Dictionary defines adversary system as “a procedural system, such as the Anglo-American legal system, involving active and unhindered parties contesting with each other to put forth a case before an independent decision-maker.” Some trace its origins to the days of trial by combat when disputes were settled with sword and shield. Today, we are more civilized and allow a judge or jury to ascertain the truth of the matter by reviewing evidence, hearing witnesses, arguments, and legal precedent. The rules are well known and each side is expected to follow those rules.

“The…adversary system reflects the conviction that everyone is entitled to [their] day in court before a free, impartial, and independent judge.“¹

While the combatants prepare for court, our system in North Carolina also requires that we make good faith attempts to settle the case. Our Family Court system requires that the parties mediate child custody and equitable distribution (property division). Before equitable distribution or a child support matter comes on for hearing, the parties conduct a Pre-Trial Conference and often enter a Pre-Trial Order which narrows the issues and also offers an opportunity for settlement.

Empirical evidence shows that these good faith efforts toward settlement work in that the majority of equitable distribution cases actually settle at mediation.² Child custody mediation in North Carolina has proven successful.³ Anecdotal data suggests that a high percentage of family law disputes are settled through judicially approved Consent Orders.

So what is wrong with the system? Critics say that the system is broken. Apparently, those in Charlotte, NC agreed enough to elect Bill Belk as a District Court Judge after he campaigned on a platform that the judicial system needed reform because it was “pitting family members against each other” and “creating fear for children.” While Judge Belk’s case is news for other reasons,⁴ academics see a paradigm shift from adversarial to collaborative in part because social scientists believe a child’s adjustment to divorce depends largely on their parent’s behavior.⁵

Under any system, children should not be used as pawns and parents should not discuss their legal battles with their child(ren). Under the adversarial system, there are consequences for such misbehavior. Judges usually order that the parents shall not discuss pending litigation with the child(ren) and shall not disparage the other parent within the hearing of a minor child. Parents who disobey such a court order can face jail time in North Carolina for civil and/or criminal contempt. It can also be a basis to modify the custodial arrangement for the child(ren).

At the extreme is the concept of collaborative law which has been described as “therapeutic jurisprudence” or “holistic law.” Under a collaborative law approach, the parties simply have to be trusted that they will properly behave until a court order can be entered after settlement as parties agree not to go to court. The concept originated in 1990 from Stu Webb, a Minnesota Attorney and self-described Buddhist, who says he “hated his litigation practice” and was ready to quit the practice of law.⁶

Under collaborative law, each party will generally:

1. Sign an agreement that they will not litigate;
2. Agree to disclose all information;
3. Participate in a series of meetings between the parties and their collaborative lawyers in order to settle their case, often over a potluck meal;
4. Agree that all communications during settlement negotiations shall not be used in a subsequent court proceeding; and
5. Hire one expert in each field and split the costs (e.g., a collaboratively trained CPA, a collaboratively trained mental health professional) instead of hiring dueling experts.

Collaborative law differs from mediation in that there is no pending court case and while a mediator is a neutral third party, in collaborative law the parties’ attorneys facilitate the negotiations. If the parties are unable to reach an agreement, the collaborative law attorneys no longer represent them and they hire other attorneys to litigate their matter under the normal adversarial process. Proponents claim that 94% of cases are settled through the collaborative law model and that collaborative law is quicker, cheaper and less confrontational.⁷ Practitioners of collaborative law admit it is not suitable for cases involving domestic violence, drug or alcohol addiction, and mental illness.

Our legislature has authorized collaborative law and it is codified at N.C. GEN. STAT. § 50-70 et seq. However, its validity is not universally settled. At least one state has found it to be unethical.⁸ But North Carolina has found it ethical.⁹

Collaborative law has certainly not taken hold here in the Fifth and Thirteenth Judicial Districts. Perhaps this is because couples who are facing a divorce are not likely to hire lawyers who are more akin to mental health therapists and advocate that everyone get naked, jump in a pile, eat potluck and sign agreements mutually beneficial to everyone. If the couple is fair minded, we don’t need collaborative law to reach settlement (see statistics above showing the settlement process under adversarial law already works). If they are not fair minded, it is my opinion they are more likely to reach settlement if they have a court date and a lawyer who is prepared to try their case.

Collaborative law also seems to suffer from an inherent bias in that: everyone is there to decide what is best for the client without verification or the threat of sanctions to enforce a party’s good faith participation. I personally like Ronald Reagan’s “Trust, but Verify” approach over a “trust” only approach. By having only one expert “trained” in collaborative law, you only have one opinion as to what the property is worth (no dispute), and what should be done with the kids (no dispute). And the attorneys who are willing to practice collaborative law are naturally drawn to it for a reason. It would be hard under such a system not to settle cases. But how, without a third party neutral, do you really know the value of the property? What amount of child support should be paid? What is truly best for the child(ren) with respect to their custodial arrangement?

Perhaps I am old fashioned but I see collaborative law as an oxymoron. Lawyers are trained to do battle for their clients. Certainly, we learn the art of negotiation and seek settlements that are to the benefit of our client (and the children who are the subject of a custody dispute) but collaboration and law simply don’t fit together. You might feel really good about it but I don’t see how you can be sure you did the right thing.

References:
1 http://legal-dictionary.thefreedictionary.com/Adversary+System
2 http://www.nccourts.org/Courts/CRS/Councils/DRC/Documents/ffs_stats07-08.pdf
3 Reynolds, “Back to the Future: An Empirical Study of Child Custody Outcomes,” 85 N.C. L. Rev. 1629, (2007).
4 http://www.charlotteobserver.com/597/story/729152.html
5 Singer, Dispute Resolution and the Post-Divorce Family: Implications of a Paradigm Shift, http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1715&context=fac_pubs
6 http://cuttingedgelaw.com/video/video-stu-webb-godfather-collaborative-law
7 http://cuttingedgelaw.com
8 http://www.cobar.org/index.cfm/ID/386/subID/10159/Ethics-Opinion-115:-Ethical-Considerations-in-the-Collaborative-and-Cooperative-Law-Contexts,-02/24/
9 http://www.ncbar.gov/ethics/ethics.asp?page=2&keywords=Collaborative

Published September 16, 2009 | Authored by Mark Spencer Williams, Esq. and Managing Member, Rice Law, PLLC