Category: Family Law

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.

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.

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.

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.

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.

SFLG Moves to Patton Parker House Oct. 3

Siemens Family Law Group is proud to announce its move to the Patton Parker House.

95 Charlotte

Siemens Family Law Group’s new office at 95 Charlotte Street.

The Patton Parker House, at Charlotte and Chestnut St., offers a distinguished history and character that suits the firm’s clients and style of practice.  The history of this location will be thoughtfully displayed, and available to you and to our community.  We look forward to greeting you there.

Siemens Family Law Group will be open for business at the Patton Parker House October 3rd, 2016, with parking and entry from the front or the back of the home.  The firm’s new mailing address, effective October 3rd, will be 95 Charlotte St., Asheville, N.C. 28801.

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.

 

Jim Siemens honored in 2016 Legal Elite

Jim SiemensSiemens Family Law Group is pleased to announce Jim Siemens’ inclusion in Business North Carolina’s 2016 Legal Elite.  Each year, Business North Carolina honors the state’s top lawyers in business-related categories.  Every active lawyer in the state is given the opportunity to participate by selecting peers they feel are at the top of their fields.  Fewer than 3 percent of the state’s lawyers made this year’s list.  Jim is included in the Legal Elite Family Law section for the third year.  The complete list and more information about the selection process can be found on Business North Carolina’s 2016 Legal Elite website.