Category: Divorce

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.

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.

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.

Choosing the Right Lawyer for Your Divorce

Going through a divorce that involves claims for child custody, child support, spousal support, and/or division of marital property and debts involves making difficult decisions that can impact your life for years to come. One of the most important decisions that you make will be your choice of an attorney. The attorney you choose can make a big difference in the experience you have with the legal process, as well as the outcome of your case. Hiring an experienced and qualified attorney to represent you before or soon after separation can help to ensure that you make informed decisions and that your rights and interests are protected.

According to the North Carolina State Bar’s website that provides real-time information, as of October 24, 2016, there were 750 lawyers in Buncombe County who were active and licensed to practice law. With hundreds of lawyers in the Asheville area, how do you choose the attorney that is right for you?

The following suggestions can provide guidance to help you choose an attorney for your divorce or family related matter that you are compatible working with and who has the background and experience to effectively handle your legal matter:

  • Choose an attorney who focuses their practice on family law – the area of the law in which you need assistance. Laws and legal procedures are always changing. Attorneys who devote their practice to family law are more likely to be up-to-date on changes in applicable laws, more familiar with local Family Court rules and procedures, and in general, more equipped to provide you with seasoned advice and guidance.
  • Ask family and friends for referrals. However, remember that each case is unique. An attorney may be successful in helping a friend resolve a child custody dispute, but it does not mean that attorney is the best fit for representing you in a complex or high net worth divorce.
  • Do your research. Check out a potential attorney’s background, education, certifications, and other qualifications.
  • If you are relying on information on the Internet to find a divorce lawyer in the Asheville area, you may be overwhelmed by the sheer number of attorneys and law firms. Pay attention to websites that rely on “client review” or “peer review”, such as Martindale.com or AVVO.com to rate attorneys. Those websites provide reviews and ratings from other attorneys and clients, not just paid advertising.
  • If your finances permit, have a consultation with two or three attorneys so that you have a baseline for comparison.
  • Choose a family law attorney that you feel you can trust to give you good advice, guidance, and legal representation. Listen to your instincts.
  • Be wary of an attorney who offers an unqualified assurance that he/she can get you a certain result. In North Carolina, it is unethical for an attorney to guarantee a client a specific outcome. No one can predict what a judge or jury will do or how a case will be resolved.
  • Before you hire an attorney, make sure you clearly understand how you will be charged for services provided by the attorney, associates, paralegals, and other staff, as well as for any expenses for which you may be billed, such as postage, copies, and depositions. If you have concerns about how you will pay your attorney’s fees, talk to your attorney upfront to see if any special arrangements can be worked out.

Divorce is complicated. Choosing an attorney should not be. The attorneys at Siemens Family Law Group focus their practice exclusively on family related legal matters. Our team of experienced family law attorneys and trained support staff work hard to ensure that your needs are met throughout the legal process. Our attorneys are skilled negotiators and experienced trial lawyers who are committed to helping you achieve fair and effective remedies to your family related legal problems. If you are in need of legal representation for a divorce or other family related matter, contact our office. We can help.

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.

Reflecting on a Shared-Custody Childhood

In “The Secret Superpower of a Shared-Custody Kid,” a New York Times contributor reflects on her joint custody childhood. She explains that despite the anxiety she experienced switching from one house to another, she now understands how her parents worked hard to stay connected, and the benefits she has today from that experience. Growing up as part of two distinct households helped her develop what she describes as “real agility: a knack for adapting, switching gears, understanding the language of families, blending in.” Read more about what she learned from her joint custody childhood on the New York Times Well blog.

Representing the Dependent Spouse

Jim Siemens and Brenda Coppede recently presented at the North Carolina Bar Association’s Family Law Section Annual Meeting in Charleston.  Jim and Brenda’s CLE topic was Representing the Dependent Spouse, and you can take a look at their presentation materials below.

 

Loving Our Children Unconditionally

Here is a piece by David Brooks, a social commentator that I appreciate.  His point is that our love for our children should not be conditioned upon their achievements.  The piece resonates for me as a parent, and as a professional advising parents in the process of separation and divorce.  It could be that children affected by separation and divorce are particularly vulnerable to the adverse effects of love conditioned upon achievement and perhaps an expressed preference for one household over another.  Read Brooks’ column, “Love and Merit,” on The Opinon Pages: http://nyti.ms/1ONlDKy

Shared Parenting for Parents Living Apart

The opinion of Robert E. Emery, PhD, on the benefits of shared parenting is consistent with the perspective I have heard expressed by psychologists in North Carolina educating the Judges we appear in front of. These paragraphs in his recent New York Times article are particularly significant:

“Today, close to half of first marriages end in divorce. About 40 percent of children are born outside of marriage. Custody is routinely shared by parents living apart. Many states have dropped the term ‘custody’ altogether for more family-friendly terms. You no longer win or lose custody. You develop a parenting plan.

Psychologists and decades of research support this shift. Cooperative parenting benefits children, whether parents live together or apart. Just ask any kid whose divorced parents are at war, ‘What are three wishes for your family?’ You can bet that one will be a version of ‘I wish my parents would stop putting me in the middle.”

We see that shared parenting and parenting plans are favored by the Buncombe County Family Court. There are exceptions to that trend, and we can help you evaluate whether your situation might be exceptional.

Read the full New York Times article, “How Divorced Parents Lost Their Rights”: http://nyti.ms/1qpUxkA