Sharpening the Saw

A few months ago I posted about a Covey Leadership training the Siemens Family Law Group attended.  I have watched the group practicing the habits since, and I think we have all gained personally and professionally.  I know everybody has practiced the 7th habit, because we have all taken some time off this Summer.

This week, I have taken a couple days at the beach.  Before I return to the office, I want to post about that 7th habit of re-creation, what Covey calls “sharpening the saw”.

The metaphor goes like this: you can’t saw wood all week and expect the saw to perform the same way Friday as it did when you started Monday.  The saw needs to be maintained, it needs to be sharpened.  You might say you have too much wood to cut to take time to do the sharpening, but that will only make the saw dull and ineffective.

I have encouraged every member of SFLG to take time off this Summer, for good reason.  Time away from the job allows for re-creation.  An opportunity to rediscover talents and interests.  An opportunity for fresh perspective and insight.  I know I am coming back sharper, with more ideas and a renewed desire to care for clients.

But the real message here is for clients and prospective clients.  Separation and divorce are some of the toughest life experiences humans endure.  In the past 24 months, I have known clients, and their former partners, who have become so overwhelmed by the circumstances and events of their lives that they experienced tragic consequences. I believe they forgot to care for themselves along the way – they neglected to sharpen their saw.

You can’t afford not to take care of yourself.  Take a day off and take more if you can.  Go for a ride, a run, a hike.  Read, paint, play music.  Do whatever it is you used to do that brought you joy.  Re-create yourself.  You will be happier for it, and better able to manage whatever comes your way.

We want our clients to do their best to take care of themselves.  Clients who know how to sharpen the saw are better able to follow our advice, make better decisions, and help us to get better results.

Stay sharp and count on us to do the same.

Are you prepared for a possible “Gray Divorce?”

While browsing the Asheville Citizen-Times website on August 13, 2012, we came across a terrific article by guest columnist Haleh Moddasser about “Gray Divorce.”  Although the article targets older women,  we feel Ms. Moddasser’s article contains important information for all of us,  regardless of gender and whether you may be young, middle-aged or whatever comes after that.  Given that family and financial circumstances can change unexpectedly, be it by death, accident, or divorce, it pays to plan ahead and be informed. Follow the link to learn more:  http://www.CITIZENTIMES.com/apps/pbcs.dll/article?AID=/201208140015/LIVING/308140016

 

 

 

Finding an Asheville Divorce Lawyer

If you are reading this entry, you are probably contemplating separation from your spouse.  Or maybe you have already done that.  You probably have questions about the law, and how the law applies to you.  You are likely under a tremendous amount of stress from the life changes you are experiencing.  You are looking for a lawyer to answer questions, to solve legal problems, and to provide wise counsel.

Finding the right divorce lawyer at this stage in your life is critical.  Take control of finding the right divorce lawyer in Asheville by following some of these tips.

  1. Interview divorce lawyers until you find someone you are confident understands you and understands your case.
  2. Ask yourself whether you like the lawyer you are meeting with.  If you don’t feel that you have established a rapport with your lawyer during the initial consult, you may want to move on.
  3. Remember, if the lawyer you are consulting doesn’t stand out to you, chances are your lawyer is not going to stand out to the opposing party, or the Court.
  4. When you interview divorce lawyers, assess whether they have time for you and your case.  Too much time is a bad sign.  Too little time can also be a problem.  Your divorce lawyer is working for you, ask if they can commit to provide you the time and attention you deserve.
  5. Pay attention to your divorce lawyer’s office.  Do you get the impression that the office is organized?  Is the atmosphere professional?  Is attention paid to confidentiality?  Do you get the sense that office staff is happy and ready to serve you?  If your answer to any of those questions is no, you may want to move on.
  6. Being a divorce lawyer is hard work.  But that doesn’t excuse your lawyer from explaining what he or she is doing for you, in as much detail as you desire.  Your lawyer should be able to articulate a strategy to achieve your goals, at every step of the process.  Your lawyer should be able to demonstrate competence under pressure.
  7. Determine how your divorce lawyer is going to communicate.  Some divorce lawyers in Asheville still don’t use email.  Some don’t have smart phones.  Being able to communicate with your lawyer is going to be important.  Determine how that will happen.  Determine how quickly the divorce lawyer you are going to hire can return your call or email.

These seven tips should empower you to choose your Divorce Lawyer in Asheville.  Make the right choice at the outset.

Separation Agreement

When we accept a case involving separation, we typically contemplate guiding our clients down one of two roads: 1. negotiation of a separation and property settlement agreement without court involvement, or 2. filing a lawsuit.  Here we address the first of these roads.

 

WHAT IS SEPARATION? In North Carolina, you do not need to have any specific form or paper in order to be legally separated.  Legal separation occurs when one spouse leaves the marital home and stops living together under the same roof with his or her spouse.  At separation, at least one party must have the intent of remaining separate and apart.  This “intent” does not mean either party can’t hope for reconciliation under better circumstances, but it does mean that separate households are being created for the foreseeable future. The law presumes that spouses have separated when there is an obvious change in living arrangements and one spouse’s intent to remain separate is expressed.

 

AGREEMENT TO SEPARATE VS. SEPARATION AND PROPERTY SETTLEMENT AGREEMENT: WHICH ONE AND WHY?   It is best for spouses to separate after having discussed and negotiated a written agreement to separate that both have signed in front of a notary.  This type of written agreement, referred to as a “Consent to Separate” or “Separation Agreement”, typically states that the parties have agreed to live separate and apart, as if unmarried, and that neither will accuse the other of “abandoning” the marriage.   This agreement to separate can be as simple as that, or it can be part of a more detailed contract that addresses property settlement, child custody and support and spousal support and alimony.  We call an agreement to separate, which includes these additional provisions a “Separation and Property Settlement Agreement”.

 

When spouses can successfully negotiate a complete Separation and Property Settlement Agreement, they can avoid the expense and uncertainty of involving a Court in deciding matters highly personal and complex matters.  Spouses who reach agreements ideally understand what to expect from each other so they can go more easily go about the process of reorganizing their lives.  The only thing typically left for those spouses to do is to file for divorce at the conclusion of one continuous year of separation.

 

HOW CAN YOU HELP ME WITH THE SEPARATION AND PROPERTY SETTLEMENT AGREEMENT?  We begin the process of preparing a separation agreement by carefully listening to you in order to clearly understand your concerns and goals.  We will understand the economics of the marriage, the needs of children and the nature and extent of the marital estate.  Once we have an understanding of these things, we can put the framework of an Agreement together.

 

In the process of generating the property settlement portion of an agreement, we may ask you to bring us documentation, including mortgage, credit card, retirement, brokerage and bank statements.  If you or your spouse owns a business, we may involve a CPA to understand and value the business.

 

If it can be done in a calm and rational manner, we encourage you to negotiate with your spouse as we prepare agreements so that the Agreement we prepare is one that is likely to be signed.  Negotiation can occur at the kitchen table, at settlement conferences in our offices, through mediated settlement conferences in mediators’ offices, or by and through attorneys.  Agreements that both spouses have participated in generating, and fully understand, are typically durable and enforceable.

Effective Habits at Siemens Family Law Group

The Siemens Family Law Group attended a FranklinCovey 7 Habits Signature Program in April, 2012.   We thought the program was important enough that all present members of Justice through proactivity and effective communicationthe group were in attendance and active participants.  The training was premised on the 7 Habits paradigm that Stephen Covey has created.

The first three habits are habits are foundational.  The first of these is proactivity.  Proactive leaders work from the circle of their own influence and are not distracted by outside influences over which they have no control.  Proactive leaders respond to stimulus proactively, rather than reactively.  Proactive leaders recognize that they have the freedom to choose their responses.

Effective leaders approach tasks with the end in mind.  They envision their end point and survey the route that will get them there.  If you don’t know where you are going, you can’t lead.  Beginning with the end in mind is the second habit.

Putting first things first is the third habit.  Leaders adopting this habit identify and sort out truly important tasks from those tasks that consume time and energy, but which are not truly important. Stephen Covey encourages identifying and eliminating distraction.  Leaders who are distracted are not effective.

With these foundational habits engrained personally, Stephen Covey suggests moving toward interaction with others from a win/win mindset.  The fourth habit of an effective leader, then, is to think win/win.  This type of thinking calls for the achievement of your goals, but also the achievement of the goals of those with whom you interact.

The fifth habit is that of empathic listening (as opposed to autobiographical listening) as you interact with others.  Empathic listening does not involve advice giving, probing, or judgment.  The goal of an empathic listener is to understand the feeling and substance being expressed by the speaker before the listener responds.  When that understanding is reached, rapport is established and one can then seek to be understood.

The habit of synergy is the sixth habit, the natural culmination of the previously described habits, and the ideal outcome of relationships with others.  Synergy is something Covey refers to as the “third alternative” which emerges when people collaborate.  When leaders synergize, they can create outcomes that are greater than the sum of the resources applied.

The seventh habit is the habit of recreation or re-creation.  He calls the habit “sharpening the saw”.  What he emphasizes is that effective leaders have a responsibility to take care of themselves mentally, physically, spiritually and emotionally.  Only by doing so can leaders expect continuity of leadership.

We came away from the training committed to applying these habits in our work for clients.  We see the potential for continued professional and personal growth as the 7 habits are applied.  A mission statement for the Siemens Family Law Group was borne out of the process: Justice through proactivity and effective communication.

Pay Up or Else: Enforcement of Alimony Orders Through Contempt Proceedings

It is all-too-common for supporting spouses who are ordered to pay alimony to refuse to make these payments, leading to contempt proceedings and a contempt order requiring the supporting spouse to pay or face arrest.

Because contempt orders are immediately appealable, in past decades supporting spouses could use the appeal process to extend their willful refusal to pay.  Nearly thirty years ago, the North Carolina Supreme Court noted this injustice:

Counsel correctly argued that supporting spouses have a lengthy period of virtual immunity from support obligations while cases work their way through the appellate process… We agree …that a more satisfactory answer should be found, but that answer can come only from the Legislature.

Quick v. Quick, 305 N.C. 446, 461-462, 290 S.E.2d 653 (1982).

Three years later, the General Assembly acted on the Supreme Court’s invitation in Quick by passing North Carolina Session Law 1985-482, which provides:

Section 1. G.S. 50-16.7(j) is rewritten to read:

“(j) ….Notwithstanding the provisions of G.S. 1-294 or G.S. 1-289, an order for the periodic payment of alimony that has been appealed to the Appellate Division is enforceable in the trial court by proceedings for civil contempt during the pendency of the appeal. …the Court of the Appellate Division in which the appeal is pending may stay any order for civil contempt entered for alimony until the appeal is decided if justice requires.”

This Act created a new norm for enforcement of alimony judgments during appeal:  contempt proceedings in the trial court continue during the pendency of the appeal, and stays of such proceedings now are the exception.

The North Carolina Court of Appeals recently affirmed this appellate enforcement of alimony through trial court contempt proceedings in Romulus v. Romulus.  The Romulus Court reviewed the Quick opinion and noted that our legislature has found a “more satisfactory answer” by making alimony orders enforceable by contempt pending appeal.

Dependent spouses should aggressively enforce any court-ordered alimony through contempt proceedings.  Supporting spouses should pay up or face the consequences.

Jim Member of the Law Practice Management Section

Jim Siemens is a member of the Law Practice Management Section of the North Carolina State Bar Association.  The section is devoted to supporting lawyers throughout the State in the delivery of legal services efficiently, professionally and ethically.  One of the functions of the section is to provide continuing legal education to young lawyers throughout the State, interested in establishing legal practices.  As law schools and law school graduates in North Carolina proliferate, more and more young lawyers are electing to begin solo and small practices.  The Law Practice Management Section can support these lawyers, ensuring the delivery of quality legal services to North Carolinians.  Jim is proud to support the efforts of the Law Practice Management Section.  Jim guides the Siemens Family Law Group in the delivery of legal services with the goal of providing efficient, effective, quality legal services to clients.

Alimony Denied

If you are a dependent spouse who is contemplating separation, North Carolina law sets a clear guideline to preserve your right to alimony:  do not engage in any sexual activity outside the marriage until you are separated.  If you do, or even put yourself in an ambiguous situation, you will damage yourself substantially.

North Carolina law provides that alimony shall not be awarded if the dependent spouse case engaged in “illicit sexual behavior” prior to separation.   N.C. Gen. Stat. §50-16.1A(3)a.     In the recent case of Romulus v. Romulus, the Court of Appeals applied this statute to bar alimony to a dependent spouse who had two ambiguous sexual encounters prior to her separation.

The Romulus boyfriend testified that, on two occasions, he either penetrated the dependent spouse with his finger, or touched her with his penis, but did not have intercourse because he was impotent.

The trial court and the Court of Appeals held that the boyfriend’s testimony established that the dependent spouse had engaged in illicit sexual behavior, and thus was barred from receiving alimony.  Even more, the Court held that, because the testimony established both sexual “inclination” and “opportunity” on her part, the dependent spouse could be presumed to have engaged in sexual intercourse.

Although the dependent spouse’s conduct in Romulus was ambiguous, North Carolina law and the Court’s application of  that law were not.  To preserve the  right to alimony, dependent spouses must not engage in any sexual conduct with outside parties prior to separation, and must avoid situations that could be characterized as demonstrating sexual inclination and opportunity.

Are You Really Married?

Most married couples never question the legal validity of their marriage, and most have no reason to.  Those who chose non-traditional forms of solemnizing their marriage, though, might want to take a closer look.

For a marriage to be valid under current North Carolina law, the parties must express their intent to marry either (1) in the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate, and with the consequent declaration by the minister or magistrate that the persons are husband and wife; or (2) in accordance with any mode of solemnization recognized by any religious denomination, or federally or State recognized Indian Nation or Tribe.  N. C. Gen. Stat. §51-1.1.

The current marriage statute is substantially more liberal than in years past because it accepts the validity of Native American ceremonies and any religious denomination.  Nonetheless, it retains its emphasis on the presence of a minister or magistrate.  Couples who were married by people whose credentials as a minister were questionable have, in turn, had the validity of their marriage questioned.

For example, in Pickard v. Pickard, 176 N.C. App. 193 (2006), the parties were married by an officiant who had paid $10 to become a minister of the Universal Life Church, and who had performed only one marriage ceremony – the one being questioned.  The trial court found that the officiant was not a minister and, therefore, the marriage was not valid.

Similarly, the statutory expansion to recognize Native American ceremonies did not occur until 2001, and couples who were married by such ceremonies prior to that date might find the validity of the marriage questioned for purposes of determining alimony and other marital obligations.

Most marriages occur in recognized religious institutions or ceremonies and are unquestionably valid.  Those who choose alternative means of solemnizing their marriage should ensure that their ceremony is officiated by a person recognized by North Carolina law to declare them married.

Buncombe County Family Court Changes

The Buncombe County Family Court and Offices have moved to the third floor of the Courthouse in reasonably renovated space.  The Family Court offices are accessible, functional and seem comfortable for the Family Court case managers.  There are 2 new courtrooms on this floor which are equally comfortable and functional.

The Family Court bench has changed as well.  The Honorable Ward D. Scott, Andrea F. Dray and Rebecca B. Knight now preside exclusively in Family Court.  Judge Julie M. Kepple, who began her career as a District Court Judge in Family Court, is now handling criminal matters primarily.

Conference space for lawyers and clients remains inadequate on the 3rd floor in our view.  There are also no wireless signals available in the Buncombe County courthouse.  We typically solve these deficiencies by meeting with clients on the 10th floor of the courthouse in library conference rooms.  We bring our PCs and portable printer in order to deliver services that are not otherwise readily available in the building.

We continue to support the efforts of the Family Court program and believe it is the right paradigm.  We appreciate the hard work of the Family Court case managers and staff.  And we appreciate the dedication, competence and patience demonstrated by the Family Court bench and clerks on a daily basis.