ABA Home Front features an information center, a directory of programs and a military pro bono center.  The attorneys at Rice Law, PLLC participate in the military pro bono project.

The portal includes information about the Servicemembers Civil Relief Act, which provides legal protections for active-duty military and their families.

The online legal allows service members and their families to access basic information on the legal issue they’re dealing with—whether it’s a family law matter, tax question or problem with a creditor.  Rice Law’s virtual law office allows individuals to seek specific legal help on a particular problem.

More and more boomers are faced with the daunting challenge of caring for their parents because the safety net for older adults is facing imminent threats. Social Security, Medicare and Medicaid programs will potentially decrease benefits to elderly Americans, thus increasing the responsibility of adult children to manage their parents lives as they struggle with Alzheimer’s disease and dementia. The United States government and local governments have attempted to adapt to these necessary changes, but the system has become even more difficult to understand. It is important to find an attorney that knows the relevant laws and system because the incompetency and guardianship process can be difficult and stressful.

As a hypothetical, imagine an elderly member of your family is showing signs of dementia. She cannot take care of herself and is living in unsanitary conditions, but due to the onset of dementia she refuses care. Moreover, due to her dementia she is confrontational about accepting assistance from you or anyone in her home. What do you do?

The hypothetical is becoming a common challenge due to the growing elderly population. In North Carolina, the legal system provides an option to have an individual declared incompetent and a guardian appointed, either an individual, corporation, or public agent. See N.C. Gen. Stat. §35A-1112 and N.C. Gen. Stat. §35A-1214. The person filing the petition is the petitioner, and the petitioner is often a family member that has the best interests in mind of their family member, the respondent.

An incompetency and/or guardianship hearing is conducted in front of the Clerk of Court as either a bench trial or a jury trial. The petitioner and respondent are entitled to present testimony and documentary evidence, so the proceeding is much like any other court case. In North Carolina, the petitioner pays the filing fee and sometimes the guardian ad litem costs, but the petitioner is not required to pay some of the costs as long as they have reasonable grounds for their action. Moreover, if the respondent is declared incompetent, the respondent or their estate will likely be charged the guardian ad litem’s attorney fees and costs.

The respondent will be appointed a guardian ad litem, which is a member of the local Bar. The guardian ad litem should perform a thorough study of the individual’s current mental state, but the guardian ad litem is unlikely to favor the petitioner because “The guardian ad litem shall present to the clerk the respondent’s express wishes at all relevant stages of the proceedings.” See N.C. Gen. Stat. §35A.

At the first scheduled court date the petitioner can move that the Clerk order a physician to perform a multi-disciplinary report on the individual. The multi-disciplinary report is a basis for the Clerk to decide whether the respondent is incompetent in the opinion of a trained medical professional.

N.C. Gen. Stat. §35A-1112(d) provides in relevant part that “If the finder of fact, whether the clerk or jury, finds by clear, cogent, and convincing evidence that the respondent is incompetent, the clerk shall enter an order adjudicating the respondent incompetent.”

N.C. Gen. Stat. §35A-1112(e) on guardianship provides in relevant part that “Following an adjudication of incompetence, the clerk shall either appoint a guardian” or transfer it to the appropriate county to appoint the guardian.

If the Clerk or jury finds the respondent incompetent, the Clerk will issue an Order setting forth the nature of the guardianship and name of the guardian, powers and duties of the guardian, and the identity of the agency, if any. The Clerk can also order a limited guardianship based upon the nature and extent of the ward’s incompetence. N.C. Gen. Stat. §35A-1215. The best option for a guardian is an accountable and responsible individual capable of handling the ward’s financial, legal and medical issues.

These proceedings are contentious if attorneys are representing the parties. The process can be worthwhile if the petitioner has the best interests in mind so that the respondent can receive the care they need. All parties to this proceeding should take their role seriously by seeing the big picture of what is likely to occur, especially in the case of an elderly family member, as it is too late to begin this process once an incident occurs which leads to a quick death.

In some cases the solution is proper estate planning. All adults should have a Health Care Power of Attorney, Durable Power of Attorney, and Will. In a properly drafted power of attorney the option is provided to nominate a potential guardian. This becomes important if a doctor declares their patient incompetent, at which point the patient’s power of attorney takes effect, including the nominated guardian. In this scenario, proper estate planning likely prevents a costly court battle.

The number of elderly North Carolinians with Alzheimer’s Disease is projected to increase from 170,000 in 2010 to 210,000 in 2025. —Alzheimer’s Association, 2010 Alzheimer’s Disease Facts & Figures

Disclaimer: This information is only applicable to North Carolina. We strongly recommend that you consult with a licensed attorney concerning your matter.

Author’s Note: The above is presented as general information. It is not exhaustive coverage of this issue but only a general explanation from an attorney’s perspective. The purpose of this article is to inform the non-lawyer of the issue in North Carolina. The reader interested in learning more should contact an attorney licensed to practice law in their jurisdiction.

In North Carolina, as in many states, the law is trying to keep up with changing technology and culture. This is not just true in so far as computers and cell phone usage is concerned, but also in health and medical fields. For instance, the law in North Carolina has recently recognized a changing world in recent passage of laws concerning: smoking in public places, driving while texting, and video conferencing over the Internet as a supplement to traditional child visitation. Another area of recent fluctuation in the laws of North Carolina is in the area surrogacy.

Surrogacy is the term used to describe the pregnancy of a woman for the benefit of another—usually a contracting couple. There are several types of surrogacy arrangements, such as: “straight” surrogacy when the surrogate is carrying to term her biological child which was conceived precisely for the purpose of providing a child to a contracting couple; “gestational” surrogacy involves the surrogate mother becoming pregnant by transferring a fertilized embryo into the surrogate mother to act as the host of the embryo baby until birth.

Either form of surrogacy, straight or gestational, may be either altruistic or commercial in nature. In altruistic surrogacy, the surrogate receives no compensation for carrying the child to term except as to medical and other pregnancy related expenses. In commercial surrogacy, where allowed, the surrogate receives compensation above and beyond the medical expenses, said compensation can range from $10,000 to around $55,000, not including the cost of fertilization procedures and other medical expenses.

Surrogacy is a viable option for those wishing to produce a child who do not have the means by which to do so, including infertile couples, homosexual and lesbian couples, and single persons wishing to have a child.

North Carolina does not presently have any law directly dealing with surrogacy. However, contract law and adoption laws in North Carolina appear to allow surrogacy albeit in strained terms.

North Carolina has recognized artificial insemination in N.C. Gen. Stat. § 49A-1 which states: “Any child or children born as the result of heterologous artificial insemination shall be considered at law in all respects the same as a naturally conceived legitimate child of the husband and wife requesting and consenting in writing to the use of such technique.”

However, nowhere in N.C. Gen. Stat. § 49A-1 is surrogacy mentioned.

Under North Carolina law, a delivering mother is presumed to be the mother of the child she delivers. The husband of the delivering mother is presumed to be the father of the child. Thus, if a woman agrees to be the surrogate mother for a contracting couple, then, upon birth of the child, the surrogate is considered the mother and her husband is presumed to be the father despite the fact that neither one may have contributed genetically to the child. This leaves the contracting couple (who may have both contributed to the genetic make-up of the child) forced to adopt their own biological child under North Carolina’s adoption statutes.

Adoption in this manner is allowed under North Carolina law so long as no compensation is paid to the surrogate—commercial surrogacy appears to not be allowed under North Carolina law where the adoptions statutes apply. It should be noted that the adoption procedures open the contracting party up to various pre-placement requirements enumerated in the adoption statutes including home studies by the Department of Social Services or another licensed agency.

In March 2009, the legislature of North Carolina began working on House Bill 510 and Senate Bill 440. If the proposed law passes, gestational surrogacy agreements would be officially recognized by North Carolina. As it stands, contract law generally allows parties to the contract to agree to almost any endeavor so long as the purpose of the contract is not immoral or illegal and does not violate public policy. It has not been established whether or not North Carolina would consider a surrogacy agreement immoral or in violation of public policy and as such surrogacy agreement are of questionable enforceability at the present.

Commercial surrogacy will become validated if the North Carolina Legislature passes House Bill 510 (SB 440) as presently written. The proposed law states that: “The consideration, if any, paid to a gestational carrier shall be reasonable and negotiated in good faith between the parties. Compensation may not be conditioned upon the health or characteristics of any fetus, embryo, or child produced as the result of assisted reproduction.”

In conclusion, at the present only altruistic surrogacy appears to be achievable in North Carolina through North Carolina’s adoption statutes but little protections are available to the contracting party/intended parent due to present questions surrounding the enforceability of surrogacy contracts and the legal presumptions presently in place regarding parentage. However, times-are-a-changin’ and North Carolina appears (if HB 510 and SB 440 are any indication) to be moving along the same progressive timeline as many other states and may soon make it easier to create surrogacy arrangements between intended parents and the gestational women, potentially even commercial surrogacy arrangements. It just takes a little time for the law to catch up to changes in the technology and culture.

Author’s Note: The above is presented as general information on surrogacy law in North Carolina. It is not exhaustive coverage of this issue but only a general explanation from an attorney’s perspective. The purpose of this article is to inform the non-lawyer who may read it the current status of surrogacy law in North Carolina. The reader interested in learning more should contact an attorney licensed to practice law in their jurisdiction.

First, the parties identify the property. For instance, most people have different types of property, and an attorney will likely need details about the property like the year and/or product number. Property includes collections, stocks, and vehicles to name a few. In all cases, attorneys use discovery as an important tool to identify all of the property. (“By finding hidden assets, preventing surprise, narrowing the issues before trial, or promoting fair settlement; discovery reduces the costs to the client in the long run and/or increases that which the client is entitled.”)

Second, a court classifies the property into separate, marital or divisible. The classification of the property depends on whether the property is acquired before, during or after the marriage. The source of funds rule controls this process in North Carolina. In addition, under the source of funds rule property may have both separate and marital interests, like if money from an inheritance is combined with funds from a joint account to purchase a boat. However, some courts have ruled the money from inheritance used on a boat becomes marital because it is a gift to the marriage. For couples that acquired property for many years, the classification process is more difficult.

A helpful analogy for equitable distribution is the image of a football field with one goalpost at each end. All property acquired before or after the marriage will fall off the field outside of the goalposts and is your separate property. All property acquired during the marriage falls on the field within the goalposts and is marital property. If separate property, acquired before the marriage, is used to pay for a marital residence it is pulled onto the field and thus becomes marital property. Divisible property covers the change in value of marital property after separation but before distribution, and this increase or decrease falls outside of the goalposts. This analogy explains the basic rules of equitable distribution, but exceptions do exist.

Third, a court values the property. This step merely requires determination of the fair market value. One problematic type of property is a collection. Be content to keep the collection if you have a collection of beanie babies or baseball cards. These collections are worth a fraction of their value 10-20 years ago. The value assigned to a collection must be equal to what similar collections sell for today.

Fourth, a court distributes the assets, and debts if any. North Carolina presumes an equitable distribution, 50/50 split, of the marital property and debt. Obviously, it makes sense to give a collection to the person that is more emotionally attached to the collection. Furthermore, the family heirlooms typically stay with the person that brought the heirloom to the marriage.

Now that you have a general understanding of how equitable distribution works, start listing the specific property items that you most desire and provide this list to your attorney. Equitable distribution becomes more expensive in cases that require discovery to identify suspected hidden assets, experts to value business interests, and an attorney to initiate litigation for purposes of a Qualified Domestic Relations Order (QDRO). Trust your attorney to create a good game plan to accomplish the desired outcome.

For more information on equitable distribution and other family law topics, get the free eBook on Separation & Divorce.

The above is presented as general information on equitable distribution. It is not exhaustive coverage of these issues but only a general explanation from an attorney’s perspective. Seek help from a licensed attorney for more information.

The dependent spouse depends upon their supporting spouse to pay the bills for the food, home, etc., which can lead to a lack of control over their life. In the event the dependant spouse intends to separate from the supporting spouse, they should consult an attorney to learn about their many options. The options below are not exhaustive and will not apply to every situation.

In the event the supporting spouse will not leave the marital residence, the dependant spouse and children should seek a temporary home so that a Complaint and Motions can be filed after the parties separate. The temporary home may be required for a couple of days or months. Before leaving the residence, the dependant spouse should make copies of important documents, refrain from arguments, and limit computer activity. It is necessary to shut down social networking pages on the day you leave the residence, and take your computer to a shop to ensure that spyware was not installed by your spouse. However, the dependant spouse should leave immediately in a case of domestic violence and, in this situation, a local legal aid office and shelters for victims will usually provide free assistance.

In an attempt to provide stability to the dependant spouse and children, an attorney can file a complaint, motion for interim distribution, and motion for sequestration. In these documents an attorney can request that the dependant spouse be supported financially, and the Court can order that the supporting spouse be removed from the former marital residence so that the dependant spouse can return to the residence. The Court can order an interim distribution of marital and separate property pursuant to N.C. Gen. Stat. §50-20(i)(1) (Distribution by Court of Marital and Divisible Property), which provides as follows:

(i)(1) Unless good cause is shown that there should not be an interim distribution, the Court may, at any time after an action for equitable distribution has been filed and prior to the final judgment of equitable distribution, enter orders declaring what is separate property and may also enter orders dividing part of the marital property, divisible property or debt, or marital debt between parties.

For more information about equitable distribution, see the property settlement page on our Website.

se·ques·tra·tion [see-kwes-trey-shun], legal definitions:

1. Seizure of property.
2. A writ authorizing seizure of property.

The order for sequestration is similar to a temporary restraining order. It is a common law remedy that is used on a regular basis in this type of situation. A Judge can order the property to be sequestered with or without the presence of the supporting spouse or opposing counsel. It is highly recommended that the dependant spouse change the locks on the home as soon as they return to the former marital residence. If the supporting spouse returns to the former marital residence, the dependant spouse can request that the police enforce the Court’s Order and eject the supporting spouse from the property. Another option is to file charges for domestic criminal trespass, in which case the accused might be taken to jail. For more information about protective orders, see the domestic violence page on our Website.

A dependant spouse may choose to have an attorney prepare a separation contract or Separation and Property Settlement Agreement (SAPS). These two documents can settle some important issues. The agreement should attempt to maintain the status quo of the current child custody arrangement. For instance, the dependant spouse would maintain primary custody of the children throughout the week, while the supporting spouse visitation on some nights and every other weekend. The amount of custody and/or visitation of the supporting spouse will vary according to their work schedule. This type of custody arrangement can provide a stable environment for the children. Of course, the agreement should provide for interim financial support for the dependant spouse in order to provide a safe home and necessities for the children. The agreement can even contain a clause providing for “Temporary Possession of the Marital Residence.” See the sample separation contract on our Website.

These are a few of the legal options provided for stay-at-home parents and dependant spouses in North Carolina. To learn about additional options, get the free eBook on Separation & Divorce. In all of these cases the children’s best interests and safety should be the primary concerns of the parents.

The above is presented as general information on separation and interim distribution and sequestration. It is not exhaustive coverage of these issues but only a general explanation from an attorney’s perspective. Seek help from a licensed attorney for more information.

The government’s solution to close the loophole was to amend the Gun Control Act in September 1996, resulting in the domestic violence amendment, 18 U.S.C. § 922(d)(9) and 18 U.S.C. § 922(g)(9), commonly known as the “Lautenberg Amendment.” The Lautenberg Amendment prohibits all persons convicted of misdemeanor crime of domestic violence from shipping, transporting, possessing or receiving firearms or ammunition. Furthermore, it also prohibits knowingly selling or providing a firearm to a person who is known to have a domestic violence conviction. The constitutionality of the law was unsuccessfully challenged in a couple of cases.^b

The Gun Control Act, specifically the Lautenberg Amendment, applies retroactively and prospectively to the previously exempt groups of current military service members and recruits. The Department of Defense has taken the Lautenberg Amendment seriously by distributing memorandums that direct the military branches to alert service members of their continuing affirmative obligation to report qualifying convictions. The Department of Defense does allow branches to determine whether to give a reasonable time to seek expungement or pardon of a qualifying conviction.

There are possible exceptions that allow service members to avoid discharge due to a qualifying conviction of domestic violence. The Department of Defense interprets the Lautenberg Amendment to not apply to major military weapon systems or “crew served military weapons and ammunition (tanks, missiles, aircraft, etc.).” In addition, it is conceivably possible to receive reassignment to a position that does not involve use of weapons or ammunition, but this likely mean a loss of rank. These are exceptions in cases of domestic violence, and the Department of Defense will not easily allow a service member to escape discharge.

In North Carolina, domestic violence includes more than just physical assault. N.C. Gen Stat. § 50B-1 defines domestic violence in relevant part as:

a) Domestic violence means the commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person with whom the aggrieved party has or has had a personal relationship, but does not include acts of self-defense:

(1) Attempting to cause bodily injury, or intentionally causing bodily injury; or

(2) Placing the aggrieved party or a member of the aggrieved party’s family or household in fear of imminent serious bodily injury or continued harassment, as defined in G.S. 14-277.3, that rises to such a level as to inflict substantial emotional distress; or

(3) Committing any act defined in G.S. 14-27.2 through G.S. 14-27.7.

The definition likely includes harassment on the Internet or phone. The divorce process can create tension and arguments, and many people vent on the Internet. It is important to keep a cool head rather than sending a threatening email or posting “fighting words.”

Domestic violence is an especially serious issue for service members returning from combat. Prosecution of these acts by a civilian or military court can lead to devastating consequences. For instance, if left undiagnosed or untreated, post traumatic stress disorder (PTSD) may lead to physical and verbal aggression. The flashbacks associated with PTSD can lead to threats against spouses and/or children. In 2007, a Navy doctor sent a memorandum to colleagues that warned, “If adjudication of misconduct charges results in a less-than-honorable discharge, the Marine may lose eligibility for ongoing treatment in the Veterans Administration health care system.” Not only will the service member lose their job, they may lose veterans benefits and discontinue treatment for PTSD.

All military service members should carefully consider that a plea bargain of guilty will trigger the Lautenberg Amendment. It is unlikely to stop prosecution of a serious domestic violence incident. However, in cases of mere heated arguments, a “no fault” settlement is a possible way to prevent triggering the Lautenberg Amendment. Your attorney can immediately contact opposing counsel and suggest methods of “no-fault” settlement, including possession of the residence, division of items of personal property and, if necessary, some measures of interim support for the wife or children. The parties may want to agree to a consent order that discourages harassment and threats. You should carefully consider your attorney’s advice to give a little extra to your spouse because it is likely a better option than losing your livelihood.

Both service members and spouses may seek limited assistance from the JAG office, but usually only the first spouse to consult the office will receive assistance. Take the initiative to get treatment and counseling for PTSD, but if you are accused of domestic violence then consult your JAG office and/or a licensed criminal or family law attorney. An upcoming Rice Law blog article will discuss several laws that assist domestic violence victims to continue to receive government benefits and to enforce court orders on military property.^c

Footnotes

a) Frank Raleigh Lautenberg is a United States Senator from New Jersey that introduced and sponsored the Domestic Violence Offender Gun Ban, known as the “Lautenberg Amendment.”

b) The purpose of this article is to impress on military service members some of the important provisions of the Lautenberg Amendment. The reader interested in learning more should contact a licensed attorney in their jurisdiction.

c) The US Army reports that 27,973 of its troops were dismissed from service on punitive discharges from October 2002 to May 2009.

References

See United States v. Emerson, (No. 99-10331) (5th Cir. 2001); Gillespie v. City of Indianapolis, Indiana, 185 F.3d 693 (7th Cir. 1999); and, United States v. Waters, 23 F.3d 29 (2d Cir. 1994) (ex post facto based challenge to a 922(g)(4) conviction).

An accusation of domestic violence against a law enforcement officer will likely lead to an interrogation. North Carolina has considered more procedural protections for accused officers in the legislation entitled The Law Enforcement Officer Discipline Act. Law enforcement personnel are protected in some states and departments by a peace officer’s bill of rights. Not all states have adopted the peace officer’s bill of rights. The bill of rights usually ensures that the officer is questioned in a civil and reasonable manner. Law enforcement officers accused of domestic violence should take advantage of their right to have representation present at an interrogation. The lawyer should ensure that the officer receives a recording or transcript of the proceeding. (Source: When the Batterer is a Law Enforcement Officer: A guide for Advocates, http://www.bwjp.org, Battered Women’s Justice Project, Diane Wetendorf.)

Department of Defense Policy Memorandum on the Lautenberg Amendment, David S. C. Chu (Source: www.ricefamilylaw.com.)

Military misconduct may be sign of PTSD, http://www.washingtontimes.com, Amanda Carpenter.

Domestic Violence Problems, Protections and Practice Tips, http://www.washingtontimes.com, Mark Sullivan.

In some cases, “what the court givith, the IRS taketh away.” Depending on the language in certain court orders, this change in legislation may allow a custodial parent to revoke a dependency exemption despite what a state judge ordered in a divorce decree.

A recent review of the Internal Revenue Code revealed the change in 2008. The change in law is a result of court cases and comments from the public and tax professionals. A custodial parent is now likely able to release or revoke an exemption for a child from a noncustodial parent. According to the IRS website, “if the custodial parent provides notice of revocation to the noncustodial parent in 2009, the earliest tax year the revocation can be effective is the tax year beginning in 2010.” The IRS has also further clarified and modified its definitions of a custodial parent and noncustodial parent.

A revocation of a release will likely have federal and state tax implications for both parents. A custodial parent can revoke a previous release of an exemption on IRS form 8332. As a result, the noncustodial parent may be prevented from claiming the child exemption on their Federal return. Moreover, if the custodial parent revokes a release, the noncustodial parent may be prevented from claiming a child credit/deduction on their State return. Exceptions do exist to the new tax rules on release and revocation.

The change requires that the individual claiming an exemption attach specific paperwork to their tax return. The original tax form 8332, signed by the custodial parent, is usually required. Court cases have ruled that some previously acceptable documents are no longer accepted by the IRS in lieu of a signed form 8332. If a signed form 8332 is not available, noncustodial parents should immediately consult a tax professional to ensure they comply with the new requirements.

The IRS Web site, www.irs.gov, provides further explanation, definitions, and some examples.

IRS CIRCULAR 230 DISCLOSURE: Rice Law, PLLC does not provide tax advice. Accordingly, pursuant to requirements imposed by the Internal Revenue Service, any tax advice contained herein (including any attachments) is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code or promoting, marketing or recommending to another person any tax-related matter.

Litigation involving divorce, child custody, property distribution, alimony and other family law claims is deeply personal. The pleadings (lay persons sometimes call them “court papers”) filed in the courthouse are required to contain the full legal name and address of the Plaintiff and Defendant. The pleadings must also contain the date of birth of each child and until a few years ago, the social security number of litigants and children. The scary part is that these records are public records open to inspection by anyone who walks into the Clerk of Court’s office for any county in the State of North Carolina.

Families who resolved their family law dispute out of court through a Separation Agreement and Property Settlement (SAPS) often record these agreements with the Register of Deeds in the county in which they reside. These SAPS often include personal information as well and until recently such information as full legal name, address, social security number and date of birth. These records, including actual images, are often available online.

According to @JavelinStrategy, a company that has been measuring identity theft since 2004, identity theft increased in 2008 to 9.9 million adults and cost Americans an estimated $48 billion. Their study found that stolen wallets and physical documents accounted for 43% of identity theft.

If you have ever been divorced, involved in a child custody case, or a child support case, such documents containing your personal information may very well be on display at the county courthouse or in the county Register of Deeds.

In 2005, the North Carolina State Legislature enacted the Identity Theft Protection Act, N.C. GEN. STAT. § 132-1.10, in an effort to protect North Carolinians from identity theft. The act:

1. Placed restrictions on the use of social security numbers by businesses;
2. Required businesses to securely destroy business records containing personal information;
3. Allowed consumers to place a security freeze on their credit report;
4. Required consumers be notified in the event of a security breach;
5. Expanded criminal prosecution of identity theft; and
6. Enacted a requirement that the Clerk of Court and Register of Deeds remove personal information upon request.

The legislation has been expanded since it was enacted in 2005 to provide additional protections. In fact, Governor Beverly E. Purdue just signed into law an act that will become effective 1 October 2009 that further enhances the protections. The new law allows the Clerk of Court or Register of Deeds to remove social security numbers and driver’s license numbers without a request.

While there are a few statutes that still require disclosure of social security number, driver’s license and other identifying information in pleadings filed with the Court, many uses are now prohibited. Any person who prepares or files a document recorded with the Register of Deeds or filed with the Clerk of Court can be subjected to a $500 fine.

The Identity Theft Protection Act provides a mechanism for you to have your personal information removed from the public record. Part (f) of the State law allows that:

“Any person has the right to request that a register of deeds or clerk of court remove, from an image or copy of an official record placed on a register of deeds’ or court’s Internet Web site available to the general public or an Internet Web site available to the general public used by a register of deeds or court to display public records by the register of deeds or clerk of court, the person’s social security, employer taxpayer identification, drivers license, state identification, passport, checking account, savings account, credit card, or debit card number, or personal identification (PIN) code or passwords contained in that official record. The request must be made in writing, legibly signed by the requester, and delivered by mail, facsimile, or electronic transmission, or delivered in person to the register of deeds or clerk of court. The request must specify the personal information to be redacted, information that identifies the document that contains the personal information and unique information that identifies the location within the document that contains the social security, employer taxpayer identification, drivers license, state identification, passport, checking account, savings account, credit card, or debit card number, or personal identification (PIN) code or passwords to be redacted. The request for redaction shall be considered a public record with access restricted to the register of deeds, the clerk of court, their staff, or upon order of the court.”

No fee may be charged by the Clerk of Court or Register of Deeds for redacting the pleadings filed with the Court and recorded with the Register of Deeds.

However, any person who requests a redaction without proper authority to do so shall be guilty of an infraction, punishable by a fine not to exceed five hundred dollars ($500.00) for each violation.

Our firm continues to see documents filed with the Court—especially in child custody, child support, and property division cases—where personal information is included. We are advising all of our clients to request that their personal information be removed from the public record to better safeguard their identity. We are also asking judges to place medical records and other evidence introduce at trial under seal to keep it private.

We believe, at minimum, that you should take the following steps:

1. Check the records published about you by the Register of Deeds in the county in which you reside or have resided. Generally you will want to examine any recorded Separation Agreement & Property Settlement (SAPS), Deed, Deed of Trust, Power of Attorney, Assumed Name or other similar document. Links to all North Carolina’s Register of Deeds offices can be found at The North Carolina Register of Deeds Association;
2. Check the records at the Courthouse in the county where you were involved with any litigation.
3. If you find information that should be redacted, send a written request specifying what information should be redacted and identify the specific documents where the personal information is displayed. You may use this Request to Redact Personal Information to ask that the Clerk Redact your Personal Information.

We hope this helps North Carolinians better understand their privacy rights in family law litigation. We have helped a number of clients redact personal information. Sometimes litigation was necessary to effect the redaction. If you have specific questions, please let us know through our Virtual Law Office.

Published September 3, 2009 | Authored by Mark Spencer Williams, Esq. and Managing Member, Rice Law, PLLC

*Author’s Note: This article is intended to raise awareness of the problems of identity theft associated with family law and divorce matters. It is not intended to be a comprehensive analysis of the steps you should take to protect your identity. We strongly encourage you to consult with a licensed attorney in the State of North Carolina who routinely handles family law and divorce matters.

1. Mums the Word

Don’t tell anyone what you are doing and don’t leave a paper trail through e-mail, credit cards, checks, cell phone bills, or strange people calling your house asking for you until you are legally separated.

2. Lawyer Up

Seek the advice of a divorce attorney who practices NC family law before you do anything. Action (and/or inaction) can significantly affect the outcome of your divorce, alimony, child support, property division, and more. Don’t screw up by trying to do it yourself! There are many pitfalls and traps to handling your own divorce. Remember the old adage: “The lawyer who represents himself has a fool for a client.”

a. Paperwork Traps
John* downloaded a form from the Web or got a form from the library and signed it with his wife, Sue*, only to spend more than twice the normal litigation costs trying to set aside the document, correct problems with it or find that it is enforceable to John’s detriment.

b. Decision Traps
Sue agrees to a property settlement without considering John’s pension because she did not know what property to consider as marital or failed to conduct discovery resulting in the loss of her share of the biggest asset they had together. John agrees to pay $800 per month in child support to Sue when the guidelines would have only required $600 per month. Sue leaves the kids with John for a week and then she takes them for a week. By the time the couple gets to court, Sue doesn’t like this arrangement but the Court finds this is the status quo and should be maintained pending a final hearing.

c. Information Traps
There are some things you really should not tell your spouse if you are getting divorced. Don’t talk about extramarital affairs. If asked under oath, you must be truthful. But at this stage, you need counsel on what to do and what not to do.

d. Other Traps
There are many other traps. Obviously, we can’t teach you three years of law school in one article! See our article on selecting a divorce attorney. Even if you can’t afford a full service law firm, you can consider unbundled services where the lawyer does part of the work (e.g., prepares pleadings, agreements) and the client acts as their own lawyer.

3. See a Counselor

Make sure that both your heart and your head want the divorce. If you have not tried marital counseling, try it. If your spouse will not go, go by yourself. We ask all of our clients if they are sure they have exhausted steps to save their marriage and truly desire a divorce. Despite this, many reconcile after the lawsuit is filed. Even if you are absolutely sure you want a divorce, talking to a counselor may help you (and your children) make a more healthy transition. If you have children, the counselor can give you good advice on how to tell the kids. Save yourself time and money and the potential damage done by the litigation process itself and talk to a counselor. If you need a referral, call Rice Law PLLC at (910) 762-3854.

4. Copy

Make copies of everything you will not be able to put your hands on after you separate (e.g., children’s school records, medical records, pictures, tax returns, pay stubs, routine bills, credit card statements, wills, deeds, copy of titles to cars and boats) and store these copies off-site. If you take originals, you are responsible for safeguarding them and may have to return some or all to your spouse. The trunk of your car is not off-site! Buy a file cabinet and store it in a relative’s or friend’s garage, or rent a safety deposit box or storage unit.

5. Stay Put (for Now)

Stay put until you do #1 and #2—unless you are the victim of domestic violence. Your attorney will advise whether it is best for you to leave the marital residence. If your spouse is abusive, seek immediate help from a domestic violence shelter in your county; don’t follow the steps enumerated above—seek immediate help!

6. Safeguard Communications

While you are still living together, it is not a crime in the State of North Carolina for your spouse to snoop through all of your stuff. He/she may even put spyware on your computer to monitor your activities. Consider getting a P.O. Box to receive secure mail, open a new e-mail account (e.g., gmail) to receive secure e-mail, and check your e-mail account on a computer to which your spouse does not have access.

7. Safeguard Assets

Beginning right now, start taking out or making a list of things to take out of the house that are your purely personal possessions and cannot be replaced (e.g., class ring, heirlooms, children’s photographs). When you separate, you may need to freeze or close certain accounts. You may need your attorney to obtain an injunction preventing you and/or your spouse from disposing of certain assets. Talk to your attorney for instructions.

8. Open Bank Account

Go ahead and open a checking/savings account at a different bank from where you and your spouse currently bank. You will have to account to your husband/wife for the funds you deposit before date of separation but you will need a separate account.

9. Apartment/House Hunt

You may need a temporary place to stay. If you have children, the temporary home should be conducive to their needs (e.g., separate bedrooms). Investigate your options and the cost.

10. Get Support

You may need short term financial support from your family to help cover the costs of moving, attorney fees, and living costs during the transition. You may also want to consider attending a divorce support group or a cooperative parenting program to learn how children of divorce are affected and what you can do to help them cope.

Published August 27, 2009 | Authored by Mark Spencer Williams, Esq. and Managing Member, Rice Law, PLLC

*Author’s Note: This article is not intended to be a comprehensive analysis of the steps you should take when contemplating a divorce. “John” and “Sue” are fictional characters who do not represent real people but who do represent true situations. We strongly encourage you to consult with a licensed Divorce Attorney in the State of North Carolina before taking any action.

It can be difficult to know where to turn when dealing with divorce, child custody, money, and property issues. Unfortunately, most people don’t spend much time selecting their legal representation, immediately signing on with a law firm shared by a neighbor or friend. Because changing lawyers mid-case can be costly and sometimes case-damaging, consider these nine things when selecting a divorce attorney that will protect your children and your assets:

1) Experience in North Carolina family law

Look for an attorney with substantial experience in the area of North Carolina Family Law. A family law-focused attorney is more familiar with state case law, local rules, required procedures, and opposing counsel. Armed with this experience, they should be able to give you good advice regarding the facts of your situation. Rice Law is experienced in these areas. In fact, one senior member has over 38 years of experience in family law.

2) Strong client testimonials

Is the referral based on a successful case? A referral from a trusted friend or business colleague concerning the quality of service by their attorney is an important consideration.

3) An accessible attorney

Be careful not to seek out the busiest lawyer unless you are confident that they will have adequate time for your case. One of the most common complaints about divorce attorneys is a lack of accessibility. A recent study of client satisfaction revealed these complaints against North Carolina attorneys, stating: “The lawyer didn’t return my phone calls,” “He didn’t seem to have time for me,” and “She didn’t discuss my case with me until the day of the trial.” At Rice Law, we pledge to keep you informed at every stage of the litigation. Abd we offer both traditional support and a 24/7 secure online Law Office with information on your case. Select an attorney who’s accessible and will prepare you for trial.

4) The right support

Will all the work be done by the attorney charging you an hourly rate of $200 or more an hour, or is the firm large enough that a paralegal can prepare subpoenae, an associate attorney can perform the legal research, and an experienced litigator can take the case to trial? At Rice Law, we can staff every need.

5) The right approach

Is the attorney an aggressive litigator that can stand up for your rights or does the attorney push settlement and mediation? At Rice Law, we encourage case settlement on reasonable terms and encourage mediation𓴼and we aggressively litigate when reasonable settlement efforts fail.

6) A range of services

Does the lawyer only provide full-service representation, or are they willing to unbundle services to meet your legal and financial needs? At Rice Law, we offer traditional full service representation as well as unbundled services, many of which allow for self-representation.

7) Initial consultation fees

New attorneys often offer an initial consultation without charge. Established attorneys generally require a flat fee for an initial consultation or their hourly rate.

8) Flat fee or hourly rate

A flat fee gives you the peace of mind that you’ll only spend a certain amount for the contracted legal services. However, to control the risks of a flat fee, many attorneys specifically limit what the flat fee engagement entails. The advantage of an hourly rate contract is that the engagement is usually not limited, ensuring the attorney will be able to take every available action to advance your case.

9) Someone you can trust

Exercise caution in selecting your divorce lawyer. Seek out an attorney that’s right for you—someone you can place your full trust and confidence in, as this is essential to successful representation. Rice Law believes the client-attorney fit is of utmost importance. That’s why we carefully evaluate each case and decline those that don’t fit.

Published February 5, 2009 | Authored by Mark Spencer Williams, Rice Law, PLLC