Jim Siemens Argues Before Court of Appeals in Sparta, NC

Court of Appeals

Jim Siemens presenting his argument before Judge Zachary, Chief Judge McGee and Judge Calabria.

Jim Siemens traveled last week to the mountain town of Sparta, North Carolina to present an oral argument before the Court of Appeals. The argument was part of a special session celebrating the 50th anniversary of the NC Court of Appeals, holding a session of court in a hometown or county with a special connection for each judge. Jim’s case followed a criminal case from Watauga County, and the session drew a small crowd from the Sparta community.

Jim appeared before Chief Judge Linda McGee, Judge Valerie Zachary and Judge Ann Marie Calabria in the Alleghany County Courthouse. He argued in support of three orders on the issues of equitable distribution, alimony and child support. All three orders were drafted by Jim and entered last year by the district court judge presiding in Buncombe County, and are now challenged on appeal by the Defendant.

Jim defended his positions on valuing marital assets including retirement accounts and real property; the use of date of distribution exchange rates to value Brazilian real property; the application of the terms of the parties’ premarital agreement for an equal division of the marital estate; and determining the Plaintiff’s status as a dependent spouse for establishing terms of alimony.

The Court was particularly interested in the issue of valuing the marital portion of a Thrift Savings Plan and subsequently funded IRA and annuity in the equitable distribution trial. Jim gave further support for his argument pertaining to valuing deferred compensation using a coverture fraction in the context of N.C. Gen. Stat. § 50-20.1 and Watkins v. Watkins.*

After Jim’s strong argument before the panel, he now waits for a decision from the Court. More information about the judges on the panel and the Court of Appeals of North Carolina can be found on nccourts.org. More information about the special session can be found on the Twitter page for the NC Judicial Branch.

*Watkins v. Watkins, 228 N.C. App. 548, 746 S.E.2d 394 (2013).

Jim Siemens, Court of Appeals

Jim arguing before the N.C. Court of Appeals. Photo by Chris Mears/NC Judicial Branch.

Alleghany County Courthouse

Alleghany County Courthouse in Sparta, N.C. Photo by Chris Mears/NC Judicial Branch.

 

 

 

 

 

 

Jim Siemens, Court of Appeals

Jim answering questions from the panel.    Photo by Chris Mears/NC Judicial Branch.

Court of Appeals

Judge Calabria, Judge McGee and Judge Zachary. Photo by Chris Mears/NC Judicial Branch.

 

 

What You Should Know about Child Custody in North Carolina

North Carolina courts recognize two forms of child custody: “physical custody” and “legal custody.” Physical custody refers to the right of a parent (or guardian) to have actual physical custody of the child. Legal custody refers generally to the right of a parent (or guardian) to make important decisions on behalf of a child, such as those pertaining to the child’s health, education, discipline, and religious or spiritual training.

Child custody can be agreed to between the parties, or ordered by a court. When a child’s parents do not live together, it is recommended that they have a valid written agreement or court order setting forth the terms of their child custody arrangement.

Possible options for child custody arrangements between parents include the following:

  • the parents share both legal and physical custody of the child;
  • one parent has sole legal custody and both parents share physical custody on an equal or nearly equal basis;
  • the parents share joint legal custody, but one parent has primary physical custody and the other parent has secondary physical custody;
  • one parent has both sole legal and physical custody of the child while the other parent has visitation privileges (which may include supervised visitation); or
  • one parent has both sole legal and physical custody, and the other parent does not have any visitation privileges with the child. It should be noted, however, that only in rare or highly unusual circumstances, such as where there is child abuse or child endangerment, would a judge deny a parent visitation with his or her child.

When parents cannot agree on child custody, either party can initiate legal action requesting that child custody be established (or modified) by a court with jurisdiction. Policies in North Carolina encourage parties to settle child custody disputes outside of court so the parties usually must participate in mediation before the court will schedule a hearing on the issue of child custody.

In Buncombe County, where there is a dedicated Family Court, the local form 1 entitled “Notice of Judicial Assignment” must be submitted to a Family Court case manager at the time that that a complaint or motion involving contested child custody is filed with the court, together with local form 12 that includes an “Order to Attend Parent Education/Mediation Orientation & Mediation” and “Referral for Custody Mediation.” The Family Court case manager will complete the required local forms by indicating the judge assigned to the case, setting dates for each party to attend a mandatory Parent Education class and Mediation Orientation, and scheduling a status conference or hearing on any preliminary matters. A copy of the completed local forms along with all other documents filed with the court must be delivered to Family Court and properly served on the opposing party. Buncombe County’s local rules and forms can be found on the web at http://www.nccourts.org.   Select “Buncombe County” from the drop-down menu and then click on the link for “Local Rules.”

Mediation of a contested child custody matter is a mandatory program under North Carolina state law. The requirement to attend mediation may be waived by a judge in certain circumstances, such as if a party lives a long distance from where the custody action has been filed.

When the parties attend custody mediation through the court’s mediation program, a mediator, who is a neutral third party with experience in conflict resolution, will work with the parties to attempt to help them reach an agreement regarding child custody and parenting issues. If the parties are able to resolve their custody dispute at mediation, the parties will enter into a written agreement known as a “Parenting Agreement” that details the terms of their settlement. The Parenting Agreement may then be submitted to the judge for approval, incorporated into a court order, and enforced in the same manner as a court order.

The custody mediator available through the court system is limited to working with the parties to resolve disagreements regarding child custody and/or visitation matters. There is no charge to either party for participating in the mandatory custody mediation program. Typically the parties do not have their lawyers present when they participate in the custody mediation program. However, it is strongly recommended that both parties consult with an attorney prior to the custody mediation to ensure that they understand their rights, options, and responsibilities.

The parties can agree to use the services of a private mediator if they are willing to pay for the mediator’s services. The advantage of using a private mediator is that the mediator is not limited to working with the parties to resolve child custody. The private mediator can work with the parties to resolve other issues that may be in dispute, such as child support, post-separation support, alimony, and equitable distribution of marital property and debts. When the parties agree to use a private mediator to mediate disputes that include these important family financial matters, it is customary for each party to have their attorney present to offer guidance, explore options, and advise of the pros and cons of settlement possibilities.

If the parties are unable to resolve their custody dispute through mediation, then a hearing or trial can be scheduled so that a judge can make a decision. When adjudicating child custody matters, judges are guided by the legal standard of what is in “the best interests of the child.” This standard, however, can be very subjective as judges have broad discretion in determining what constitutes the best interests of the child. This also underscores the importance of being represented by a reputable family law attorney who can present crucial evidence to the court on your behalf.

The family law attorneys at Siemens Family Law Group understand that child custody disputes can be a difficult and emotional process for families. If you are pursuing or defending a claim for child custody or visitation, we can explain your options and make recommendations based on your unique circumstances. Our dedicated and experienced attorneys are skilled negotiators and seasoned litigators. We focus our practice exclusively on family law matters, including child custody, child support, spousal support, and division of marital property and debts so you can be confident we are knowledgeable and prepared to address other claims at issue in your case. Whether you need assistance in negotiating and preparing a written separation or custody agreement, or are involved in a contentious divorce or custody battle, you can count on the attorneys at Siemens Family Law Group to provide you with exceptional legal services.

This article is intended for information purposes only and is not to be considered or substituted as legal advice. This article is based on North Carolina laws in effect at the time of posting.

Jim Siemens included in 2018 Best Lawyers

Jim/SFLGSiemens Family Law Group is pleased to announce that Jim has been recognized in the 2018 edition of The Best Lawyers in America. Jim is included in Best Lawyers for his work in the practice area of Family Law. Inclusion in Best Lawyers is based on a rigorous peer-review evaluation process. More about the selection process can be found on the Best Lawyers website, www.bestlawyers.com.

What You Should Know About Child Support in North Carolina

child supportLike most states, North Carolina uses child support guidelines to help simplify the process of determining child support. North Carolina’s guidelines are based on an income shares model, which is predicated on the concept that the child should receive the same proportion of parental income that he/she would receive if the parents lived together. The North Carolina Child Support Guidelines currently in effect provide a formula for determining the presumptive child support obligation for parents whose combined gross income is $300,000 per year ($25,000 per month) or less. The child support guidelines are reviewed and updated at least once every four years to ensure they result in reasonable child support awards.

The guidelines are designed to work in conjunction with three different worksheets that accompany the guidelines. One of these three worksheets must be used when calculating support under the guidelines. The appropriate worksheet will depend on the parties’ child custody arrangement.

Worksheet A should be used when a parent has sole or primary physical custody (meaning one parent has the child/children for 243 or more nights of the year); Worksheet B should be used when the parents share child custody (each parent has the child/children for at least 123 nights per year); and Worksheet C should be used when there are two or more children and the parents split primary custody of the children. The worksheets allow other variables to be factored into the calculation of child support, including child care costs paid by a parent due to employment or job-search, health insurance paid by a parent for the child, and either parent’s responsibility for the support of any other children.

Most child support matters fall within the scope of the child support guidelines. However, there are exceptions. When the parties’ combined income exceeds $300,000 per year, the child support guidelines do not apply, and child support must be determined on an individual case basis. In these cases, unless the parties reach an agreement, the court must conduct a hearing and set child support in such amount to meet the reasonable needs of the child for health, education and maintenance, with due regard given to the estates, earnings and conditions of the parties, the accustomed standard of living of the child and the parties, and the other facts and circumstances of the particular case.

Even when the parties’ combined gross income falls within the guidelines, special circumstances may exist that provide a basis for a party to seek, or a court to determine, that there should be a deviation from the child support guidelines. Some such circumstances include: when a child has special needs and the amount of support calculated using the guidelines would not meet the needs of the child; when a parent is paying 100% of the child support obligation and 100% of the child’s health insurance premium; or, when a parent is paying child support for two or more families pursuant to the terms of two or more separation agreements, voluntary support agreements, or court orders.

Court hearings to determine child support can be lengthy proceedings that may require extensive evidence to be presented regarding incomes, income earning ability, expenses, standard of living, and other relevant factors. However, child support does not have to be set by the court. Regardless of incomes or other factors, the parties have the option of reaching an agreement on child support and settling the matter outside of court. Whether your matter is settled amicably or requires a contested court hearing, it is recommended that you retain an experienced and qualified family law attorney to represent you throughout your child support matter. Being represented by counsel can ensure that your legal and financial interests are protected during negotiations and beyond, and that child support is set in an amount that is fair to both parties and the child.

The family law attorneys at Siemens Family Law Group provide representation in a wide array of divorce and family related legal matters, including child support. If you need assistance in making an initial determination of child support, or would like to seek an increase or decrease in an existing child support obligation, our experienced and dedicated attorneys can help. We are committed to providing compassionate guidance and effective advocacy that has earned us a reputation as one of Asheville’s premier family law firms.

This article is intended for information purposes only and is not to be considered or substituted as legal advice. This article is based on North Carolina laws in effect at the time of posting.

Mediation Center Brings Access to Justice for All

Mediation is a great tool for resolving disputes.  Many of our cases resolve in mediation, where complex issues can be resolved creatively in a calm environment.  The Buncombe County Mediation Center provides that tool for dispute resolution to the community at greatly reduced rates.  We support the Buncombe County Mediation Center, which helps bring access to justice for all.

Discovery: The Fact-Finding and Investigative Phase of Your Case

Discovery is a legal term used to describe various processes that may be used to investigate and discover facts relevant to your case.  After a lawsuit has been filed, your attorney can use discovery to obtain information and documentation to support or defend claims and investigate allegations asserted by either party. One of the advantages of having a lawsuit pending is that the court has the authority to require a party to comply with relevant discovery.

The most common forms of discovery used in family law matters, along with a brief definition and description, are those listed below.

  • Interrogatories” are written questions submitted to a party and which require that party’s sworn written answers. Example: Identify all bank accounts that you have had an interest in during the last three years.
  • Request for Production of Documents” are written requests submitted to a party requesting the production of certain documents for inspection and/or copying. Example: Produce a complete copy of your federal and state income tax returns for the last three years.
  • Request for Admissions” are written statements submitted to a party requesting the litigant to admit or deny the truth of statements or authenticity of documents. Example: Admit or deny that you corresponded with Jane Doe during the marriage and prior to the date of separation.
  • Depositions” are used to ask questions of a witness under oath. The parties to the action may be deposed, as well as witnesses, including expert witnesses, who are believed to have knowledge relevant to the case.
  • Subpoenas” may be issued to require a witness to appear and testify at court or at a deposition. A subpoena ducas tecum may be issued to require a party to produce documents at court or at a deposition, or to command the production of documents from a third-party.

The method and scope of discovery used in your case will likely depend on the issues in controversy and the complexity of those issues. In most cases, both attorneys engage in the discovery process using one or more of the methods described above. Hence, your attorney may serve interrogatories and request for production of documents on the opposing party, and the opposing party’s attorney may serve interrogatories and request for production of documents on you. It is customary in divorce related cases to request information and documents that date back one to three years before the date of the parties’ separation.

Responding to interrogatories and requests for production of documents can be a tedious and time-consuming process, but it is an integral part of your case. For example, if your case involves a claim for post-separation support and/or alimony, your attorney must have extensive documentation regarding such matters as each party’s income, expenses, income earning ability, assets, debts, and standard of living in order to be able to successfully support or defend the claim. This requires producing tax returns, wage statements, financial account statements, retirement account statements, credit card statements and other financial and personal documents. It is essential that your attorney be able to verify information and examine documents through the lens of an experienced family law practitioner. Cooperating with your attorney and promptly producing documents and information that is requested from you is one of the ways that you can keep your litigation costs down.

The information gleaned through the discovery process is vital to your case and helps to ensure that matters are resolved fairly. The exchange of information provides each party with an opportunity to learn about the other party’s side of the case. This can enhance settlement potential through informal negotiations or mediation, or provide your attorney with information that is necessary to prepare for trial.

This article is intended for information purposes only and is not to be considered or substituted as legal advice. This article is based on North Carolina laws in effect at the time of posting.

Maximizing Tax Benefits in the Context of Divorce

justice - Siemens Family Law GroupAt tax time, we handle lots of questions from clients related to the sharing of various claims and exemptions. The article Divorced Couples, Put Aside Your Differences…for the Tax Break, from The Wall Street Journal, highlights several of the issues we encounter in our work, offering suggestions to maximize tax benefits in the context of separation and divorce. Reaching tax advantaged resolutions for our clients matters to us. This article reveals how some of that can be done. The story is online at wsj.com.

BPR Story Features Patton Documents

95 Charlotte

Siemens Family Law Group’s office in the historic    Patton-Parker House.

Blue Ridge Public Radio did a story this week on the historic documents found in the ceiling of the Patton-Parker House during renovations last year. The documents provide glimpses of Asheville’s past through records of the Patton family, which played an influential role in various areas of the city’s history.

The documents have since been donated to Pack Memorial Library in downtown Asheville, and pictures of a few of the pieces are displayed throughout the building at Siemens Family Law Group.

The story, along with a slideshow featuring some of the donated documents, is available on the Blue Ridge Public Radio site: Historic Patton Documents Find New Home at Pack Library.

Brenda and Diane Run Consider Haiti Clinics

Brenda, Consider Haiti 2017

Brenda with children at a Consider Haiti medical clinic.

We are proud to share that Brenda Coppede and Diane McDonald of Siemens Family Law Group are in Haiti this week, with Consider Haiti, running clinics in Mountrois, Ivoire and Fond Baptiste.  Brenda planned this medical trip using her remarkable energy and talent for effective communication.  The focus, drive and intelligence Brenda brings to her lawyering works well, even in a country as tough to navigate as Haiti.  Thank you Brenda for all your good work, here at home and abroad!

What to Expect When a Lawsuit Has Been Filed In Your Domestic Case

justice_siemensfamilylawgroupBuncombe County is currently one of 13 judicial districts in North Carolina that has a dedicated Family Court system within its District Court division. The primary advantages to filing a legal action in a Family Court district is that the case is assigned to one judge who hears all matters related to that case, with the possible exception of emergency matters. This allows the judge to become familiar with all issues related to that particular family. The District Court judges that are assigned to Family Court received special training in family related legal matters. Additionally, the Family Court staff maintains a case management system that establishes and monitors time standards in the case from the time a lawsuit is filed until all matters in the case of been concluded. This ensures that the case remains on track and is concluded as expeditiously as possible.

There are state guidelines that mandate how the Family Court system operates. However, each judicial district has its own local rules that determine how cases filed in its district will be handled. A copy of the local Family Court rules for Buncombe County, entitled 28th Judicial District Family Court Domestic Rules, can be accessed by going to the North Carolina state court website at http://www.nccourts.org/Courts/CRS/Policies/LocalRules . State and local court forms may also be accessed through this website.

In North Carolina state courts, the party who initiates a legal action by filing a lawsuit is known as the “plaintiff.” The party who is being sued or who responds to the lawsuit is known as the “defendant.” The lawsuit itself is known as a “complaint.”

In North Carolina, you must be separated for one full year before a complaint can be filed for an absolute divorce. However, claims for child support, child custody, postseparation support, alimony, and equitable distribution should be resolved in a separation agreement or court order during the period of separation, or pending in an existing legal action before your divorce is finalized. Claims for postseparation support, alimony, and equitable distribution cannot be asserted after a judgment of divorce has been entered.

The significance of filing a lawsuit is that it brings your case before the court where it is subject to rules, procedures, and deadlines. If the parties cannot reach an agreement of the issues in dispute, then a judge can schedule a trial and make a decision for them.

From a procedural standpoint, when a complaint is filed with the court, a civil summons must also be issued by the clerk of court. A “domestic civil action cover sheet” form must be attached to the complaint. Depending on the legal issues raised in the complaint, additional documents may need to be attached to the complaint and filed with the court, including a “notice of judicial assignment” and/or an “affidavit of financial standing.” A Family Court Case manager must be contacted to complete the “notice of judicial assignment” form contemporaneously with the filing of the complaint.

After the civil summons has been issued and the complaint and related documents have been filed with the court, they must be properly served on the defendant. Proper methods of service include:

  • service by the Sheriff of the County where the defendant resides;
  • mailing by registered or certified mail, restricted delivery, return receipt requested;
  • depositing with a designated delivery service, properly addressed and delivered, and obtaining a delivery receipt which includes an electronic or facsimile receipt; and
  • defendant voluntarily accepting service by signing an acceptance of service form.

The defendant has 30 days from the date of service to file an answer or response to the allegations in the complaint. The defendant can file a motion for an extension of time with the Clerk of Superior Court in the county where the action was filed and receive an additional 30 days to file an answer. If Defendant’s answer includes counterclaims asserted against the plaintiff, the plaintiff has 30 days from the date of service to file a reply to the counterclaims, but plaintiff may request and receive an extension of time for an additional 30 days.

As an example, the plaintiff may file a complaint seeking child custody, child support, and equitable distribution, and the defendant may file an answer to the complaint that includes counterclaims seeking child custody, child support, postseparation support, alimony, attorney’s fees, and equitable distribution. The plaintiff would then need to file a reply to the counterclaims and serve defendant with the reply. A copy of all documents that are filed in Family Court cases must be promptly provided to the Family Court offices.

After the defendant has been properly served with the complaint and had an opportunity to file an answer, a hearing may be held on temporary issues, such as postseparation support.

The initial pleadings filed in the case (the complaint, answer and counterclaims, and reply) give each party notice of the legal claims and defenses being asserted by the other and provide the foundation for the parties to move into the next phase of the litigation which is typically the “discovery” phase. This allows each party an opportunity to request and obtain information and documents to support or defend their legal claims and investigate relevant issues.

Laws and legal procedures can be complicated and confusing, and add to the stress of divorce. The family law attorneys at Siemens Family Law Group are knowledgeable and experienced lawyers who represent clients in matrimonial and related matters, including divorce, child custody, child support, postseparation support, alimony, equitable distribution, and domestic violence. Our dedicated and focused family law attorneys can make a positive difference in the experience you have with the legal process and the outcome of your case. If you are considering separating from your spouse or are in need of legal representation in connection with a family law matter, contact our office to see how we can be of assistance to you.

This article is intended for information purposes only and is not to be considered or substituted as legal advice. This article is based on North Carolina laws in effect at the time of posting.