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.

Jim and Brenda honored by 2017 Super Lawyers

Siemens Family Law Group is happy to announce that Jim Siemens and Brenda Coppede have been honored as 2017 Super Lawyers. Jim was first recognized by Super Lawyers in 2012 and is included again in North Carolina’s Family Law category. Brenda is honored in the Family Law category as a Super Lawyers Rising Star.

The Super Lawyers selection process combines peer review and evaluation with independent research.  Once nominated, lawyers are evaluated based on indicators of peer recognition and professional achievement, then reviewed by practice area.  The final Super Lawyers list includes no more than 5 percent of North Carolina lawyers.

More information can be found on Jim and Brenda’s Super Lawyers profiles.

Should I Try to Settle with My Spouse or Go to Court and Let a Judge Decide?

justice_siemensfamilylawgroupOnce you have made formal arrangements to retain a divorce attorney, usually indicated by signing a fee agreement and paying any required retainers, your attorney will begin work on your legal matters. The legal claims related to divorce may include such matters as child custody, child support, postseparation support, alimony, and equitable distribution of marital property and debts. Depending on your circumstances, your attorney may contact your spouse’s attorney, or your spouse directly if he or she is not represented by an attorney, to determine whether or not some or all issues related to your separation and divorce may be settled without filing a lawsuit. Negotiating a settlement usually involves a series of offers and counter offers with both parties being willing to make certain compromises. If you and your spouse are able to reach an agreement regarding some or all issues related to your divorce, your agreement can be memorialized by entering into a valid written contract, commonly referred to as a separation agreement. Any issues which you and your spouse are unable to agree upon can be brought before the court for determination.

There are many advantages to entering into a separation agreement, or otherwise settling your matters outside of court, including those listed below.

  • Negotiating a settlement is almost always less expensive, less stressful, and less time-consuming than going to court.
  • You and your spouse can reach an agreement regarding financial matters and child related issues that best suits your needs based on your particular circumstances.
  • Reaching an agreement through informal negotiations or at mediation eliminates the uncertainty of going to court and letting a judge decide your case. If you go to court and let a judge decide, neither you nor your spouse will have any control over the outcome of the case.
  • A negotiated or mediated settlement fosters a spirit of cooperation which can help to reduce hostility and conflict. This may enable you and your spouse to preserve certain aspects of your relationship which can be especially important if you are the parents of a minor child.
  • A separation agreement provides a greater degree of privacy and it can remain private and confidential unless it is merged into a judgment of divorce. Legal documents filed in a divorce related case are a matter of public record.
  • You and your spouse can agree to things in a separation agreement or a private contract that a judge does not have the statutory authority to impose. For example, parties can agree that one or both of them will pay the college expenses for their adult child, that the noncustodial parent may claim the dependency exemption of the minor child for income tax purposes, or that an obligation to pay child support or alimony will be secured by a life insurance policy insuring the life of the supporting spouse or parent.

Although settling outside of court may be your preferred method of resolving your family related legal issues, there are a number of reasons your attorney may recommend that you file a lawsuit (known as a “complaint”), including the following:

  • the opposing party (your estranged spouse) is not negotiating in good faith, e.g. is making unreasonable demands, refusing to voluntarily provide pertinent information and documents, or not responding to settlement proposals;
  • to preserve the court’s jurisdiction (authority over your case);
  • if there has been domestic violence or there are concerns for your safety; or
  • if it is necessary to obtain a restraining order or an emergency child custody order.

Filing a lawsuit does not mean that your case will have to go to trial. In fact, the vast majority of family related legal matters in Buncombe County, North Carolina are settled outside of court. Both before and after your lawsuit has been filed, you and your attorney can continue to explore settlement possibilities through informal negotiations or by attending mediation.

Entering into a separation agreement has serious legal consequences that may impact your life for many years into the future, particularly as it may relate to paying or receiving child support or alimony, or the division of certain assets such as pension and retirement accounts. Therefore, it is imperative that you have an experienced and competent family law attorney representing you in negotiations, offering qualified legal guidance, and advocating on your behalf. Moreover, it is crucial that you fully understand the terms and conditions of any agreement or legal document that you are signing.

When you are facing the uncertainty of divorce, the family law attorneys at Siemens Family Law Group can help you understand your options, and legal rights and obligations. Whether your case is resolved through settlement negotiations or litigation, you can count on us to provide quality legal services that keeps your best interests at heart at all times. Our firm’s commitment to professionalism and client satisfaction has earned us an exceptional reputation as one of the preeminent family law firms in Asheville and the Western North Carolina area.

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.