Document 6436427

Fam. 3 - I: Separation
SEPARATION
If you and your spouse are living apart from each other with the intent not to resume the marriage,
you are “legally separated.”
In North Carolina, you do not need anything in writing to be legally
separated. You only need to live apart from each other.
Sometimes couples put in writing their understanding and agreement as to important decisions
such as: who will pay the debts?; who will keep the kids?; who will keep what property? This mutual
understanding is called a “separation agreement.”
A separation agreement is a contract between you and your spouse about important decisions.
You do not have to have a separation agreement to be legally
separated.
If your spouse offers a separation agreement, you do not have to sign it.
In North Carolina to
get a divorce or absolute divorce, you have to live separate and apart at least one year and one of the
spouses must have intended the separation to be permanent. It is also required for one of the spouses to
have lived in N.C. at least six (6) months immediately prior to filing for divorce.
If your spouse does not agree with the divorce and tells you “ I won’t give you a divorce,” you still
are entitled to the divorce if you have been separated for one year and you meet the requirements
described above.
Your spouse does not have to agree or consent to the divorce.
In addition to the divorce, your spouse may request distribution of property, spousal support
(alimony), or custody, but you are still entitled to the divorce.
If there is property which you and your spouse acquired during marriage, and you do not have a
separation agreement, you should consult an attorney because any questions about property must be
resolved before the divorce becomes final.
If you have entered a separation agreement that is satisfactory, you may want to incorporate it in
the divorce decree. This will make the separation part of the order of the court and it can be enforced by
the court.
If you want to incorporate a separation agreement into the divorce, it must be part of your
complaint, or if you are the defendant it must be part of your answer to the divorce.
Frequently Asked Questions about Separation and Divorce
My spouse and I have just split up. Do I have to do something to get a “legal separation?”
No. In NC as long as the two of you are living in separate residences and at least one of you intends the separation
to be permanent, you are considered separated.
My spouse left and I am stuck with all of the bills. Is there anything I can do to get him/her to pay them
now?
Maybe. In a case like this where you need immediate money from your spouse and he/she is not cooperating, you
should speak with an attorney. You may be able to file an action for post-separation support, however you have to
meet certain criteria and that type of case generally requires an attorney’s assistance. Additionally, most things that
go through the Court are not “immediate;” in other words, you would not get an order and get money from your
spouse that day or maybe even that week or month. If you need money immediately, you may check with local
social services offices or charitable organizations to see if there is any temporary assistance available. If you have
children in your care, you can seek child support through your local child support enforcement agency.
When can I get a divorce?
After one year of separation. In NC you must be separated for at least one full year before you obtain a divorce.
During the one year waiting period to get a divorce, am I responsible for bills my spouse incurs or am I
entitled to any property he/she may obtain during that time?
Probably yes, to some extent. However, property acquired and debts incurred during the separation are treated
differently than the property and debt accumulated while together during a marriage. If you know your spouse is
likely to run up significant debt and try to leave you with it, you should speak with an attorney for additional advice
on how to limit your liability.
My spouse and I are separated but not divorced yet. Can I date other people?
This is a difficult question to answer. Generally, if you have children together or have significant property and/or
debts to divide and you anticipate your spouse being uncooperative or even difficult, you may want to be careful
about dating during separation, as your doing so may be brought up in a later custody, equitable distribution
(property division), or spouse support case in Court. You cannot marry until the final divorce.
We have separated and I know I can’t get a divorce until it’s been a year, but we can’t agree on the kids now.
Do I have to wait a year to file for custody?
No. If you are living apart and cannot agree on custody and/or visitation, you can file a custody action with the
Court if you meet the requirements for filing custody. You should consult with an attorney or see if there are any
free custody clinics in your area.
My spouse is telling me that all of the property we got during our marriage is his/hers. Most of our things are
in his/her name. Is what he/she is telling me true?
Generally, property acquired during the marriage is considered “marital” property, regardless of whose name is on
the title. The same is true with debt. The law presumes that marital property and debt is to be divided equally.
Whether the police would help get the property back for one spouse, however, is another story. Police tend to shy
away from property disputes, leaving that for the Courts. If you have specific issues with property and need advice,
you should speak with an attorney.
What do I do if I do not know where my spouse is?
If you cannot find where your spouse is located you may need a lawyer because this will complicate your case.
If you cannot find out where you spouse is, you can try to mail the papers to your spouse at the must recent address
you have. You should send the divorce papers by certified mail, return receipt requested. Your spouse must sign
the post office receipt and return the form to you. Certified mail is not enough.
If you cannot find your spouse you can publish a notice in the newspaper. The notice must comply with specific
rules. You should contact a lawyer if you need to publish a notice in a newspaper.
How much does it cost to get a divorce?
Call the clerk of court in the county where you will file to confirm the cost of filing a divorce. In 2008 the cost of
filing is $144.00 plus a service fee of $15.00. This amount may change.
You can also file without paying court cost if you are unable to. The court has a specific form that you can
complete if you think you meet the requirements of filing without paying court costs.
How long does it take to get divorce?
Once your spouse is served, a 30 days waiting period begins. If there are issues in dispute the case may take longer.
What if there is domestic abuse?
You should talk to a lawyer if your spouse has abused you. Call the local DV shelter for advice and supportive
services if you are a victim of domestic abuse.
What if my spouse and I disagree about bills or custody of the children?
If there are children of the marriage or property that needs to be divided you should consult with a lawyer. The
court can enter temporary orders for support or custody but you must file the correct papers.
Can we resolve problems about bills, property and custody among ourselves?
You should make a list of all things you need to decide. This can include payment of bills, distribution of property
and even custody of the children. If you can agree you should prepare a written agreement signed by both spouses.
If you cannot agree on how to solve the problems, you need to talk to a lawyer.
What does it mean that the divorce is final?
A divorce is final when the judge has entered an order about the divorce. The order is called a decree.
The order will state that the marriage is ended. The judgment is effective and the marriage ends from the time the
judge decrees the divorce in open court.
A divorce decree may also include the resumption by wife of maiden name, matters dealing with equitable
distribution and alimony claims and custody of children.
What if I do not agree with the divorce order?
Unless the court changes the divorce order, you must follow it. If you do not follow the order, the Court can
penalize you for disobeying the order. You can appeal but strict rules apply to an appeal. You will need to talk to a
lawyer.
Summary of North Carolina No-Fault Divorce Law
In North Carolina you can obtain a divorce without proving that you or your spouse caused your
marriage to fail.
The law in NC permits a divorce based upon one year of
separation without regard to fault.
To obtain a divorce because of one year of separation or no-fault divorce, you must establish the
following requirements:
1. You or your spouse must have lived in NC for at
least 6 months before the divorce is filed;
2. You must have been married to the person you
are trying to divorce;
3. You and your spouse must have lived separate and
apart for one year preceding the filing of the divorce; and
a. You must show that at least one of the
spouses has intent not to resume the
marriage.
In NC living separate and apart means living in separate residences
Fam. 5-I: Divorce and Credit Accounts
DIVORCE AND CREDIT ACCOUNTS
If you have recently been through a divorce or are contemplating divorce you may need to make
changes in your credit accounts.
There are two types of credit accounts: Individual and Joint.
Individual Account:
An individual account is provided relying only on the applicant’s income, assets and credit
history.
Whether married or single, you alone are responsible for paying off the debt
of your individual account.
There may be authorized users other than you using an individual account.
When you have an individual account no one else can affect your credit record.
Joint Account:
In a joint account the income, assets and credit history of both spouses are taken into
consideration.
In a joint account each spouse is legally responsible to the creditor for the entire debt.
No matter who actually pays the household bills, both spouses are
responsible for any debt that is on a joint account.
Authorized users on your account:
If you open an individual account or a joint account you may authorize another person to use that
account.
You are responsible for paying any debt incurred on your account by any
authorized user.
In the event of divorce or separation you and your spouse are responsible for any debts on any
joint accounts.
If you are contemplating divorce or separation:
•
•
It is important to make regular payments on any joint account.
You may ask the creditor and close any joint account, or any accounts your former spouse
was a user on. This allows you to avoid further use of the credit account.
A creditor cannot close an account because of a change in marital status, but can close an account
at the request of all the account holders or in accord with the agreement.
In the case of a mortgage or home equity loan a lender will likely require refinancing to remove a
spouse from a loan.
Annulment or Cancellation of Marriage
An annulment of marriage invalidates or cancels the marriage. North Carolina Law details the
requirements for annulment or cancelling a marriage. These requirements are:
1. Marriage between two persons whose kinship
is closer than first cousins or between double
first cousins.
2. Marriage in which either the man or woman is
under 16 years of age.
3. Bigamous marriage or marriage between
persons either of whom has a husband or wife
living at the time of such marriage.
4. Marriage between persons either of whom is
at the time of such marriage physically
impotent; or
5. Marriages between persons either of whom
is at the time incapable of contracting because
of incapacity, lack of understanding, insanity.
Under any of the above scenarios “age, bigamy, incapacity, kinship” a court must declare the
marriage void or annulled.
Except in a bigamous marriage, a marriage may not be annulled after the birth of a child or death
of either spouse.
Termination of Parental Rights
The person seeking to terminate the parental rights of another has the responsibility of convincing
the court that there are specific reasons authorized by NC law to terminate the parental rights of a
defendant.
Some of the reasons to terminate the parental rights of someone are:
1. A court has found that the child has been abused or neglected by the person whose rights
are being terminated.
2. One parent has been granted legal custody and the other parent, without justification, failed
to pay child support.
3. If the child was born out of wedlock and the parent failed to acknowledge the child.
4. The parent is incapable of providing proper care and supervision of the child because of
mental illness, substance abuse or other condition.
5. The parent has abandoned the child for at least 6 consecutive months prior to filing the
petition.
To determine if your specific circumstances meet the requirements of NC Law for termination of
parental rights, you should consult with a lawyer.
A poor defendant unable to hire a lawyer is entitled to appointed counsel. In some situations the
court may also appoint a lawyer to represent the interests of the child.
A petition to terminate the parental rights of a person can be brought only by the following
persons:
1. Either parent to terminate the parental rights of the other parent. This means that a parent
cannot terminate his own parental rights.
2. A person appointed guardian of the person of the child.
3. A person with whom the child has lived for 2 continuous years preceding the filing of the
petition.
4. Others, such as the County Department of Social Services.
If the name or identity of the parent whose rights are being terminated is not known, the Court
will conduct a hearing to determine the name or identity of the parent and decide how the case
should proceed.
INSTRUCTIONS FOR LEGAL NAME CHANGE
PLEASE READ CAREFULLY – PLEASE READ CAREFULLY – PLEASE READ CAREFULLY
These sample forms have been assembled for your convenience in preparing your own legal name change.
This package is ONLY designed to cover a simple, uncontested name change. If you have questions
about whether this package is suitable for your situation, YOU SHOULD CONTACT AN ATTORNEY.
Our employees are PROHIBITED BY LAW from advising you regarding your legal situation or whether
this package is appropriate for your situation.
THESE FORMS MUST BE EITHER TYPED OR NEATLY PRINTED IN BLACK INK
1.
The NOTICE must be posted on the courthouse bulletin board (located at the Salisbury Street
entrance of the courthouse) for at least ten (10) calendar days. If the 10th day falls on a Saturday,
Sunday, or legal holiday, you must allow the NOTICE to remain posted until 5:00 p.m. the
following business day. In order to avoid having to post the NOTICE again, always keep a
copy of your NOTICE in case the one you post is lost or taken off the bulletin board. Before
posting this NOTICE, you must have it date stamped by the clerk’s office in room 1206.
2.
After your NOTICE has been posted for at least ten (10) calendar days, remove your NOTICE
from the bulletin board and bring it to the Special Proceedings Division in the Clerk’s Office,
along with the PETITION and the two (2) AFFIDAVITS OF CHARACTER. There will be a
$50.00 filing fee at this time (which includes a $2.00 fee for copies). You MUST submit to us a
copy of your BIRTH CERTIFICATE and also a valid PICTURE IDENTIFICATION for our
records. If you bring the original Birth Certificate, there will be an additional $1.00 charge for
copying. We will also need to make a copy of your Social Security card..
3.
The PETITION and AFFIDAVITS OF CHARACTER must be signed in front of a Notary Public
or they will not be accepted for filing. The AFFIDAVITS OF CHARACTER must be signed by
non-related persons, over the age of 18, who reside in the county where you file the petition.
4.
Once your documents have been reviewed in our office you will be required to complete the
ORDER AND CERTIFICATE OF NAME CHANGE . Please allow extra time to complete these
forms.
CHANGING THE NAME OF A MINOR
5.
To change the name of a child under 16 years of age, we do NOT need Affidavits of Character or
the posting of the NOTICE; however, both parents must join in the Petition as Petitioners. ONE
PARENT MAY NOT CHANGE THE NAME OF A CHILD WITHOUT THE CONSENT
OF THE OTHER PARENT, UNLESS NO FATHER IS LISTED ON THE CHILD’S
BIRTH CERTIFICATE AND YOU SUBMIT AN AFFIDAVIT FORM FROM THE
DEPARTMENT OF HUMAN RESOURCES THAT NO ACKNOWLEDGEMENT OF
PATERNITY HAS BEEN RECEIVED. OTHERWISE, IF YOU CANNOT OBTAIN THE
OTHER PARENT’S CONSENT, YOU WILL NEED AN ATTORNEY.
STATE OF NORTH CAROLINA
COUNTY OF ________________
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
Before the Clerk of Superior Court
IN RE: CHANGE OF NAME
FROM: ___________________________________
(Your current name)
TO:
___________________________________
(The name you want)
)
)
)
)
)
)
)
)
NOTICE
___________________________________, residing at _______________________________________,
(Your current name)
(Your current physical address)
North Carolina, hereby gives notice of his/her intention to file in the Office of the Clerk of Superior Court of
_________________ County, North Carolina, ten (10) days after the date of this notice, a Petition that the Court
issue
an Order changing his/her name from __________________________________________________ to
(Your current name)
_______________________________________________.
(The name you want)
This the __________ day of __________________, 20______.
________________________________
Petitioner
______________________________
Address:
______________________________
________________________________
STATE OF NORTH CAROLINA
JUSTICE
IN THE GENERAL COURT OF
SUPERIOR COURT DIVISION
Before the Clerk of Superior Court
COUNTY OF ________________
IN RE: CHANGE OF NAME
FROM: ___________________________________
NAME CHANGE
(Your current name)
ADULT
TO:
___________________________________
(The name you want)
)
)
)
PETITION FOR LEGAL
)
OF
AN
)
)
NOW COMES ____________________________, a resident of ____________________
County, North Carolina, and respectfully petitions the Court for an Order to be issued changing
his/her name and, to that end, does hereby state and show unto the Court:
1.
That your Petitioner’s name as shown on my birth certificate is
__________________________________,
who was born in the County of ___________________, State of
__________________________, on the __________ day of _______________________,
_____________; that the full name of my mother as listed on my birth certificate is
_______________________________, and that the full name of my father as listed on
my birth certificate is _____________________________. A copy of the birth certificate
is attached as an exhibit.
2.
That
your
Petitioner
desires
to
adopt
________________________________________________.
3.
That your Petitioner desires to change his/her name for the following reason:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
___________________________________________________
4.
That your Petitioner’s name has never been changed pursuant to N.C. Gen. Stat. §101.
5.
That your Petitioner has given ten (10) days notice of the filing of this Petition by posting
on the courthouse bulletin board, in the County of __________________, State of North
Carolina, a notice of his/her intent to file this Petition.
the
name
of
WHEREFORE, the Petitioner respectfully prays that the Court enter an Order changing
the
Petitioner’s
name
from
_____________________________
to
_________________________________.
This the ___________ day of _________________________, _____________.
_____________________________________
Petitioner’s Signature
I, ____________________________________, Petitioner, being first duly sworn, hereby state
that I have read the foregoing Petition and that the facts set forth therein are true to my own
knowledge and belief.
This, the __________ day of _____________________, ____________.
Subscribed and sworn before me
___________________________________
This the _____ day of _______________, ____
Signature
________________________________
_______________
Notary Public
Petitioner’s
My Commission Expires:
STATE OF NORTH CAROLINA
JUSTICE
IN THE GENERAL COURT OF
SUPERIOR COURT DIVISION
Before the Clerk of Superior Court
COUNTY OF ________________
IN RE: CHANGE OF NAME
FROM: ___________________________________
(Your current name)
CHARACTER
TO:
___________________________________
(The name you want)
)
)
)
)
AFFIDAVIT
OF
)
)
__________________________________________)
The undersigned, being first duly sworn, deposes and says:
1.
I am a resident of _____________________ County, North Carolina.
2.
I am not related to the Petitioner either by blood or marriage.
3.
I have known the Petitioner for ______________ years. I personally know
him/her to be a person of good character and know that he/she has a reputation
as a person with good character and good standing in the community.
This the __________ day of ___________________________, ____________.
_______________________________________
SIGNATURE
_______________________________________
(Affiant’s name)
_______________________________________
(Affiant’s address)
_______________________________________
(Affiant’s City, State, and Zip
Code
Sworn to and subscribed before me this the
_______ day of ___________________, ____________.
__________________________________
Notary Public
My Commission Expires: ________________.
STATE OF NORTH CAROLINA
JUSTICE
COUNTY OF ________________
IN THE GENERAL COURT OF
SUPERIOR COURT DIVISION
Before the Clerk of Superior Court
IN RE: CHANGE OF NAME
FROM: ___________________________________
(Your current name)
CHARACTER
TO:
___________________________________
(The name you want)
)
)
)
)
AFFIDAVIT
OF
)
)
__________________________________________)
The undersigned, being first duly sworn, deposes and says:
4.
I am a resident of _____________________ County, North Carolina.
5.
I am not related to the Petitioner either by blood or marriage.
6.
I have known the Petitioner for ______________ years. I personally know
him/her to be a person of good character and know that he/she has a reputation
as a person with good character and good standing in the community.
This the __________ day of ___________________________, ____________.
_______________________________________
SIGNATURE
_______________________________________
(Affiant’s name)
_______________________________________
(Affiant’s address)
_______________________________________
(Affiant’s City, State, and Zip
Code
Sworn to and subscribed before me this the
_______ day of ___________________, ____________.
__________________________________
Notary Public
My Commission Expires: ________________.
Guardianship
(G.S. 35A-1105)
1. Is it necessary?
• Protects a person who is incapable of caring for himself and/or his financial
affairs when other methods (durable financial power of attorney, living will,
health care power of attorney, and trust funds) have not been arranged
2. Hire an attorney or not?
• No need for an attorney. Petitioner can hire an attorney or if respondent is in need
of protective services, family can get social services involve (adult protective
services).
• Respondent can hire his own attorney or will be appointed a Guardian Ad Litem
who is an attorney.
3. Petition – Special Proceedings
• Need to prove respondent lacks sufficient capacity to manage his/her own affairs
or to make or communicate important decisions concerning his/her person,
family, or property
• Clear, cogent, and convincing evidence
• Heard by the Clerk of Courts
• Very difficult burden
• Petition will not be granted merely because the respondent is difficult,
disagreeable, mean, depressed, disorganized or occasionally disoriented.
• Much more of a focus on protecting respondent’s rights to continue to exercise
rights, powers and privileges and limit guardianship to those area respondent
lacks capacity
• $50 filing fee
• If respondent has no money then only a guardian of person is appointed
• If the respondent has money, then a general guardianship, limited general
guardianship, or guardianship of the estate will be appointed.
4. Preparing for the hearing and attending the hearing
• Anyone with information about the respondent should fill out a Guardianship
Capacity Questionnaire (AOC-SP-208).
• The petitioner does not need a medical records release to proceed
• Any party or the Clerk may request a Multidisciplinary evaluation (MDE)
• Proceedings are very informal
• At end of hearing, Clerk appoints Guardian(s) and designates their authority
(general, general limited, guardianship of person, guardianship of estate) and
signs the written Order on Application for Appointment of Guardian (AOC-E406)
• The matter then goes to the Estates Department
•
Appeal is to Superior Court for a de novo hearing.
5. Application for Letters of Guardianship
• Prospective guardian should be bonded prior to filing if general guardian or
guardian of estate is sought.
• Will need to take oath.
• Begin completing the Application for Letters of Guardianship (AOC-E-206)
which includes itemization of the ward’s estate. Information may be limited until
the guardian is able to present the Letters of Guardianship which comes later.
Guardians just need to do the best they can to complete this form and set their
sights on completing an accurate inventory within 90 days.
6. Letters of Guardianship
• After bond is posted.
• Duties begin
7. Rights Reserved to Ward
• To marry
• To be a witness
• Make a will
• Privilege to drive
• To contract (presumption that lacks capacity to enter contract is rebuttable)
DOMESTIC VIOLENCE PROTECTIVE ORDERS
What is a Domestic Violence Protective Order (DVPO)?
• A DVPO (also called a 50B order) is an order of the Court granting a victim of
domestic violence protection from their abuser. Many people refer to it as a
“restraining order.”
• The order can direct the abuser to do, or refrain from doing, numerous things,
including (but not limited to): staying away from the victim, not contacting the
victim by phone, mail, email or otherwise, leaving their shared home, not abusing
the victim, and in some cases may order temporary custody and/or arrange for
visitation.
What is the process for getting a DVPO?
• You must first file a Complaint. Typically when filing the Complaint you also
make a request for an Emergency Ex Parte Order. (Ex parte means that the
defendant is not present.) The Ex Parte Order is temporary and is usually done the
same day you file. You will be given a date within 10 days to come to Court.
(Many people call this Ex Parte Order a “10 day Order” because it expires after
10 days unless a hearing is held or the case/hearing is continued to another date.)
• The defendant has to be served. The sheriff usually does this.
• Go to the “Return” or “10-day” hearing. Within 10 days of your getting the Ex
Parte Order you will have a hearing. (If the defendant has not been served by that
date, the Court will continue the case to another date.) The purpose of the hearing
is to decide whether your temporary Ex Parte Order should be kept in place and
extended for up to one (1) year. (Many people call this the “permanent order,”
however it is not actually “permanent.”)
• If the defendant has been served by the hearing date, there are several possible
scenarios:
1. You (the Plaintiff/victim) do not go to Court. In this scenario the Order
will be dropped. The Ex Parte Order will no longer be valid.
2. The defendant does not come to Court. If this happens, typically the judge
will extend the DVPO for one (1) year with the same or similar terms as
the Ex Parte Order. Some judges will have the victim testify on the stand.
Other judges may just issue the order based on the verified Complaint
filed under oath.
3. The defendant comes to Court but does not want to contest the order. If
this is the case, often the judge will issue the order for one (1) year with
the same, or similar, terms as the Ex Parte Order. There will be no
trial/testimony since there is no contest.
4. ***The defendant comes to Court and contests the Order.*** This results
in a hearing. The parties will be sworn in and take the stand to present
their evidence. After the evidence is presented by both sides, the judge
decides whether to keep the order in effect or dismiss it.
HOW TO REPRESENT YOURSELF AT A DOMESTIC VIOLENCE
HEARING
What will happen at the hearing?
• When your case is called you will go to the front of the courtroom. The bailiff
should show you where to stand or sit.
• You (the victim) go first. You will take the stand and be sworn in. You will
testify.
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Tips for your direct testimony:
The judge usually will not lead or question you. You need to be prepared to
start on your own. Start with your name and relationship with the defendant.
Focus on the most recent incident of domestic violence (usually the one
detailed on your Complaint). State the date(s) and tell what happened.
Focus on what the defendant did. If he/she hit you, describe how (i.e. fist,
open handed, with object). Describe injuries, if any, and present pictures.
If the incident involves a threat, tell the judge whether you believed the threat
and why (i.e. he/she did it before). Depending on the judge, you may be able
to describe the last incident of DV before this most recent one.
If children were present, explain how they were involved/affected. If they
were in danger, tell the judge what you did to protect them.
At the end of your story, tell the judge what you want the order to do.
When you are done with your direct testimony, the defendant can crossexamine you. You must answer his/her questions unless you object and the judge
says that you do not have to answer. Questions should be relevant to the case.
If you have witnesses, you will put them on, one-by-one, and question them.
You do not have to have other witnesses. The judge usually limits witnesses to
people present at the most recent incident, but sometimes will allow others. It is
within the judge’s discretion which witnesses to allow. You will need to be
prepared to question the witness since you are acting as your own attorney. Start
by asking their name and how they know you and the defendant, then go into their
specific testimony.
The defendant can cross-examine your witnesses. If you do not feel the
question is appropriate or relevant, you may object.
The defendant will put on his/her case, much the same way you did. He/she
may testify if desired, and can put on witnesses.
You can cross-examine the defendant and/or any witnesses he/she brings.
You do not have to ask questions if you do not want to.
•
•
•
•
Tips for Cross-Examination:
Do not argue with the defendant, even if he/she is trying to argue with you.
Only ask questions. Do not make statements (i.e. “What you just said isn’t
true and you know it,” is not a question and would be inappropriate).
Ask questions with a purpose in mind.
It is usually best to ask questions that you know the defendant cannot lie
about. Remember he/she will not agree with you, so don’t try to get them to.
Guidelines to the Service Members’ Civil Relief Act
1.
Purpose:
This is a guideline to use when parties to a lawsuit are on active duty in
the armed forces.
2.
The Service Members’ Civil Relief Act (50 USC § 501, et seq.)
In 1940, Congress enacted the Soldiers and Sailors Civil Relief Act
(SSCRA). Its purpose was to protect those called to serve in the armed forces.
In 2003, the SSCRA was amended by the Service Members’ Civil Relief
Act (SCRA). Different from SSCRA it provides protections to those on active
duty, reservists and members of the National Guard when activated.
FAQS
(Frequently Asked Questions)
1.
Who is covered?
•
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2.
When does SM’s coverage under SCRA begin?
•
3.
Members of the Army, Navy, Air Force and Marine Corps on
active duty.
Members of the National Guard called to active duty as authorized
by the President or Secretary of Defense for over thirty (30) days;
Commissioned members of the Public Health Service and National
Oceanographic Atmospheric Administration.
A Service Member (SM) is covered from time of receipt of orders
to report.
What tribunals/proceeding?
•
Any court or administrative agency of the United States, state or a
political subdivision.
4.
How is the court alerted to the fact that a party is in the military?
•
5.
6.
Any person can alert the court even if the SM has not made an
appearance. It is the duty of the court to determine whether that
party is in the military.
How can any one show that a party is in the military?
•
The Department of Defense (DOD) must issue a statement of
military service.
Defense Manpower Data Center
Attention: Military Verification
1600 Wilson Blvd., Suite 400
Arlington, VA 22209-2593
(Telephone Number: 703-696-6762 or 5790
Fax Number: 703-696-4156)
•
If you have the last name and Social Security Number of the
individual, you can obtain a report showing the branch of service
and beginning date of active duty service.
https://www.dmdc.osd.mil/scra
•
If the Social Security Number is unavailable, the request can be
made with the date of birth by mail.
What is the immediate result of a finding that a party is in the military
on active duty?
•
First: The court may not enter a default judgment without
appointing an attorney for the SM. This has the immediate result of
a postponement of the proceeding.
•
Second: The SM’s attorney, or the SM, or the court itself may stay
the proceedings for at least ninety (90) days if the court determines
that:
¾ there may be a defense; or
¾ counsel has been unable to contact the SM or determine if a
meritorious defense exists.
7.
If judgment has already been entered and the court determines that a
party was in military service --
•
Judgment entered against a SM or within sixty (60) days after the
end of service must be reopened if:
¾ SM has a meritorious defense;
¾ SM has been prejudiced by the judgment;
¾ Application is filed within ninety (90) days after end of
service.
8.
What happens if SM receives notice of an action and makes an
application to the court for a stay?
•
9.
Upon application of a SM, the court SHALL stay the proceeding for
ninety (90) days.
What must be part of a valid application/motion for stay?
•
•
•
•
A statement of how the SM’s current military duties affect the SM’s
ability to appear;
State a date when SM will be available to appear;
A statement from SM’s commanding officer that the SM’s current
military duty prevents his appearance; and
A statement from commanding officer that military leave is not
authorized.
Tip:
Statement does NOT need to be under oath.
Stay can be extended upon application.
10.
Is the initial ninety (90) day stay mandatory?
•
11.
Yes.
Is any additional stay discretionary?
•
Yes. The court must find that the SM’s ability to present a defense
is “materially affected” by reason of his active duty of service.
Once the court makes this finding, the SM is entitled to a stay.
12.
Once the court makes a finding that the SM’s defense is “materially
affected”, for how long is the proceeding stayed?
•
Once the court finds that the SM’s defense is “materially affected”
by reason of his active duty, the proceeding is stayed for such time
as is necessary.
13.
If a judgment has been entered, can the execution of a judgment be
stayed?
•
Yes. In an action started against a SM during military service or
within ninety (90) days after the end of service, the court SHALL
stay the execution of any judgment or order against him.
The court can also vacate or stay any attachment or garnishment of
property, money or debts.
•
14.
Is the Statute of Limitations tolled during the period of military
service?
•
15.
What is the effect of the SCRA on leases?
•
16.
Yes. Once the period of military service is shown, the period is
automatically tolled.
The SM can terminate a lease signed before the member entered
active duty.
What must the SM do to terminate a lease?
•
The SM must give written notice to the landlord with a copy of his
military orders.
Tip:
Service Member can get a refund of security deposit.
17.
Can the Act stop an eviction?
•
18.
Yes. It depends on the amount of rent paid and requires a court order.
Does the Act apply to time payments/installment contracts and
mortgage foreclosures?
•
19.
Yes. If the SM can show that their ability to meet the financial
obligations is materially affected, the court can stay the
proceeding, prohibit the vendor/lender from exercising any right or
option under the contract, extend period of redemption and extend
the maturity date to allow for reduce monthly payments.
What is the easiest way to serve a party in military service?
•
If the SM is in a base in the United States:
¾ The easiest service is by certified mail, registered, return
receipt requested.
¾ Documents should be sent to the unit commander and
request that documents be given to military member with a
form for SM to accept service.
•
If the SM is stationed overseas:
¾ Can use registered or certified mail if host nation does not
object.
¾ When SM is stated overseas, the process process is more
complicated and may require assistance from an attorney.
MEDIATION
Many counties have a mandatory process of mediation for custody matters.
If you
the county
case will be heard has MANDATORY MEDIATION you
Do
have towhere
go to your
mediation?
must go through mediation BEFORE a permanent custody hearing.
If you receive a notice to attend mediation you have to go to the scheduled
mediation or you can be held in contempt of court.
What is mediation?
The mediator will explain the mediation process to you at the first orientation
session. Mediation provides the parties with an opportunity to resolve the dispute and to
work out the custody and visitation schedule with the help of a court certified mediator.
No attorneys are present. Anything said in mediation is considered negotiation and is
not admissible in Court. The goal of mediation is to try to get cases resolved amicably
without having to go to a full Court Hearing.
Can the case be settled in mediation?
If during mediation you are able to reach an agreement, the mediator will prepare
the agreement and have all parties sign it. Depending on the county, the mediator will
either give this agreement to the judge for his/her signature or if the parties are
represented, to their attorneys. Once approved, the agreement will go to a judge for
his/her signature and the agreement becomes an order of the court. No hearing would be
required.
How do I prepare for mediation?
You should have a plan for custody and visitation. Try to be reasonable. If you
want primary custody you should have an idea of how much time the other party should
have with the children. Think of what can work for both of you. be prepared to propose
visitation during holidays and school breaks.
What if no agreement is reached?
You do not have to come to an agreement in mediation. If what the opposing
party suggests is completely unreasonable, unworkable, and/or you just do not feel
comfortable with it, you can chose not to sign an agreement. In that instance, the
mediator will notify the Court that the case did not settle, freeing it up for a hearing.
Frequently Asked Questions About The Parenting Coordinator
Program
In Wake County the court has adopted the Parenting Coordinator Program to help
resolve high conflict custody disputes.
In North Carolina a high conflict case is one in which the parents show one or
more of the following factors:
1. Excessive litigation;
2. Anger;
3. Verbal abuse;
4. Physical aggression or threats of physical aggression;
5. Difficulty communicating about or cooperating with one another;
6. Other conditions that the judge believes justify the appointment of a Parenting
Coordinator (PC).
How does the Parenting Coordinator Program work?
A PC is assigned by the Court to teach families to make decisions that are in the
best interest of the child, explore possibilities of compromise and reduce
misunderstanding and conflict.
What is the process that the court follows to assign a PC?
A judge may appoint a PC if the parents consent. Even if the parents do not
consent, a PC may be appointed if the court determines that the case is a high conflict
case and also finds that the parties have the ability to pay. If you have received a request
to appoint a PC in your case, you should consult with a lawyer.
Is a court order necessary when the court appoints a PC?
Yes, a court order is necessary to provide the PC authority to make decisions and
obtain information. The court order will detail the areas to be addressed by the PC.
Is the order appointing the PC enforced by the court?
Yes, the court order is like any other order of the court, enforced by the contempt
powers of the court. It is very important to understand and follow the order.
Can a PC be assigned at any stage of a custody case?
Yes, but typically a PC is assigned after a custody order has already been entered.
How is the cost of a PC determined?
PCs are professionals that charge hourly fees that are typical of the practice they
are engaged in. You must sign a contract which specifies the hourly rate the coordinator
charges and the number of visits or meetings. The contract will also specify the retainer
or advance payment required by the coordinator. Each coordinator may require a
different amount of retainer and may charge a different hourly fee. The typical hourly fee
is $200.0 per hour. The retainer amount ranges from $500.0 to $5000.0. We strongly
recommend that if the other party files a motion for the appointment of a PC you consult
with an attorney.
How will a party know the cost of the PC?
In addition to a court order, the parties and the PC will enter a contract regarding
fee payments, billing practices and retainers. You should review the contract carefully
and consult with a lawyer if you have questions.
Will the court consider each parent’s income when establishing payment of the PC?
Typically fees are allocated between the parties. If the income and assets of the
parties are substantially different the court may apportion the fees in accord with the
parties’ ability to pay. You should consult with a lawyer if you have questions about the
apportionment of the fees.
What happens if one of the parties cannot afford to pay the parent coordinator’s
fees?
The court must find that the parties have the means to pay the parenting
coordinator before one may be appointed. If you have questions about your ability to pay
the PC you should consult with an attorney before the court enters an order and as soon
as you know that a PC is being considered.
Once a PC is appointed, can the order appointing a PC be terminated or modified?
Yes, any party for good cause can ask the court to terminate or modify the order
assigning a PC. If you need to modify the order you should seek the advice of a lawyer.
If a PC has been appointed and a party finds that he cannot pay the coordinator’s
fee, can the order be modified?
After an order has been entered assigning a parent coordinator, a party whose
financial situation has changed and is unable pay the coordinator’s fees, must go to court
and ask the court to modify the order. Unless the order by the court is modified or
terminated, failure to follow the order may result in contempt of court.
Who can be a PC?
PCs are professionals with master or doctorate decrees in related areas such as
psychology, social work, counseling, medicine or law. They must have at least 5 years of
experience in relevant areas. They also receive training in child development and
mediation.
How is the parent coordinator chosen for a specific case?
The court has a list of coordinators participating in the program and approved by
the court. The parties elect the coordinator from the list.
What issues are decided by the PC?
The PC often deals with parenting issues not purely legal issues. For example, the
time and place of visitation exchanges, changes in day care or schools, holidays and feesplitting for the children.
Is the information provided to the parent coordinator confidential?
No, the parent coordinator process is not confidential. The PC reports to the court
and can make recommendations regarding modification and clarification of the existing
order.
Can the PC decide who will be the primary caretaker for the children?
No, the PC does not decide which parent will have custody. That decision remains
the sole responsibility of the judge.
Frequently Asked Questions about Child Support and Paternity
Who is responsible for payment of child support?
The father and mother of a child are primarily responsible for the support of a minor child.
How do I get a child support order?
Only a judge can establish a child support order. Child support obligations may be initiated in numerous
ways: action for divorce, action in custody, action for child support, juvenile proceedings, and criminal
actions.
Do I need to file for custody or divorce to get a child support order?
No. The Child Support Enforcement program administered by NC Health and Human Services helps
people get child support even when there is no divorce or custody order.
You can apply to the Child Support enforcement office where you live for them to obtain a child support
order for your child.
If I receive public benefits, do I have to get a child support order?
Yes. If you receive temporary Assistance for Needy Families (TANF) you are required to cooperate with
the local Child support enforcement office to establish a child support order. You will be automatically
referred to the local Child support Enforcement office.
I am a victim of domestic violence and I am afraid of what he would do once I initiate a child support
action. What can I do?
Discuss this specific situation with the caseworker at the Department of Social Services and the local Child
Support Enforcement office. It is possible to obtain benefits without pursuing a child support order. There
are also protections that may apply to maintain your address confidential.
Contact a Domestic Violence shelter or LANC for further advice.
Can I get help from the local Child Support Enforcement office if I do not get public assistance?
Yes, you must complete an application and pay the required fee.
What can the Child Support Enforcement office do?
They can help you with the following:
¾ locate the parent who should pay support,
¾ establish paternity,
¾ obtain a child support order for you,
¾ collect and distribute the support payments,
¾ enforce the child support order.
What does a child support order means?
A child support order only says who must pay child support and how much. It does not establish rights to
custody or who should have visitation, who should pay spousal support or who pays debts. Child support
orders deal with child support.
What can I do if the child support payments are too high or too low?
A child support obligation may be reviewed every 36 months. If the child support order should be modified
to increase or lower it, visit the Child support Enforcement office and ask that they assess the present
income of both parents. They will determine if a modification is necessary.
A child support order can be changed before the 36 months review. Consult with a lawyer or contact your
Child Support Enforcement caseworker.
Can I change a child support order because I have lost my job and can no longer pay the support
amount in the order?
Sometimes changes occur after an order has been entered that may make the amount of the support order
no longer correct. For example you have lost your job and can only find a job that makes a lot less money
or are disabled and cannot work.
Either parent, the one paying child support or the one receiving the child support, can ask the court to
change the child support order.
If the original support order was obtained with the assistance of Child Support Enforcement they can assist
you for free. If not you will have to pay a small fee.
You should consult with Child Support enforcement to determine if the changes in your circumstances can
result in a change in the child support amount. Not every change in income justifies a change in an order.
I have become disabled; do I still have to pay child support?
Yes, but if you have no income because you are unable to work you are entitled to a reduction in the
amount of child support you pay.
If you receive Supplemental Social Security Disability (SSI) payments, your child support payments should
be reduced to zero.
You must tell the caseworker at the Child Support enforcement office that you are disabled and unable to
work or are receiving Social Security disability benefits.
My son is receiving Social Security disability payments because I am disabled. Do I still have to pay
child support payments for him?
You cannot automatically stop making payments under a child support order. If your son is entitled to
receive benefits from the Social Security Administration (SSA) because you are disabled, you should make
sure that an application has been made to SSA for your son’s benefits or child’s benefits.
The amount of child support payment you should pay must be reduced by the amount your son gets from
SSA. The amount of support payments you make may be reduced to zero.
Remember that you should tell the Child support Enforcement caseworker of any Social Security payments
to your children so that the support order is changed. These changes do not occur automatically.
I receive child support from child’s father but it is not enough to cover the cost of taking care of my
child. What can I do?
The amount of child support a child receives is determined by established guidelines. These guidelines take
into consideration several factors such as the income of both parents, the number of children, etc. You can
ask the court to change the support amount and consider factors outside the guidelines. To do this you must
convince the court that there are very good reasons to change the child support amount already ordered.
After the child support order was entered, the father of the child and I have reconciled and we live
together. What can we do?
You can ask the child support enforcement office to suspend the order. This means that the order exists but
the parent does not have to pay. Contact the Child Support enforcement office to determine how long the
support order can remain suspended.
A support order can also be terminated. This means that if you and the parent split again, you would have
to reapply for an order.
What is an arrearage?
An arrearage is the amount of child support a parent has not paid. If someone is paying child support every
dollar not paid is added to the arrearage. Sometimes the Child support Enforcement office will collect an
extra amount to cover the arrearages.
Can I forgive the parent who is responsible for child support for arrearages?
Yes contact the Child Support Enforcement office. You will have to file a written statement saying that you
do not want the arrearages and do not want Child support enforcement to collect it.
If I receive public benefits, can I forgive arrearages owed?
No. The amount of arrearages owed to the state must be paid.
If my child support order is modified because I no longer can pay the amount ordered will my
arrearages change?
No. A change in a child support order will only change the amount paid in the future. It will not change the
arrearages.
I am not getting visitation with my child. Can I change the amount of child support I pay?
No. Child support and visitation rights are two different things. You must pay child support even if not
allowed to visit. It is also true that the parent who has the child may not refuse visitation because of non
payment of child support. Visitation rights must be dealt with in a custody action.
If you have problems with custody or visitation you need to talk to a lawyer.
FAQ-Paternity
How do I become the legal father or establish paternity of a child?
Paternity is a legal process to establish that a person is the legal parent of a child. In NC there are several
ways to establish paternity.
1)
2)
3)
If you were married to the child’s mother when the child was born, you are automatically
the
father of the child.
If the parents were not married when the child was born, paternity can be established with an
affidavit of parentage saying that you are the father.
By order of the court after an action for paternity is started. If paternity is disputed then the court
may order a genetic test to establish paternity
If I am married to a woman at the time she gives birth to a child, but I am not the father of the child,
what can I do?
You must file an action in court to establish that you are not the father. This is complicated and you should
consult with a lawyer.
What can I do if I signed an affidavit acknowledging that I am the father but now I believe that I am
not the father?
After an affidavit of parentage is signed you have 60 days to cancel the affidavit. Once this time passes,
you will have to file a separate court action to change the conclusion that you are the father. This process is
complicated and you will need a lawyer.
What happens if I am not sure who the father of my child is?
When more than one person could be the father of the child, each person named may be required to take a
genetic test.