New Divorce Options Presentation

I find that many clients are completely unaware that they can actually choose the process for resolving their family law or divorce issues.  

As many people are stunned to discovery, in North Carolina you don’t have to go to court to resolve the issues of property division, cash flow, support (alimony and child support), and co-parenting (child custody).

While a legal divorce does require court action, the other and usually more pressing issues can be resolved privately, through a number of other processes.  

I have created a presentation that explains the basics of each process and briefly analyzes the pros and cons of each.  This was initially presented to a large Triangle company through its employee services program.  But, I think many more people can benefit from this information.

This informaiton may help you discuss your options with each other, and with any professionals that you consult.  

Feel free to contact me if you have questions about this information.  

New Mandatory Mediation for Wake County Contempt Actions

There are two basic documents that can be used to resolve the legal issues of divorce, separation, custody issues and cash flow issues:  Separation agreements and court orders. 

The former is a contract between the parties.  The latter is a decree by a judge.

A party can enforce a separation agreement by filing a breach of contract lawsuit.

A party enforces a court order by asking the court to hold the non-compliant party in contempt

A contempt action is appropriate when one party is not doing what the court ordered them to do (or is doing something that the court ordered them not to do).

Contempt actions have become increasingly common.  Parties that cannot get along frequently file contempt actions against each other as a continuation of the fighting that led to their divorce or custody battle.

In fact, so many contempt actions have been filed in the last few years that the Wake County family courts have been swamped. 

In response, the Wake County family court has instituted a mandatory mediation program for all contempt actions. 

Now, every time someone files a contempt action against the other parent or their former spouse, both parties will have to attend mediation in the courthouse without attorneys. This mediation takes place at their first court date for the contempt action. 

This program is further evidence that the courts lack the resources to serve as the primary dispute resolution option for family law matters. 

It also shows that even the courts value and appreciate non-court processes for resolving family law disputes.

Randolph (Tré) Morgan III is an experienced family law attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas.  He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, paternity, guardianship and other family related matters.  

Talking About Divorce May Save Your Marriage

As this article from CNN shows, discussing a possible divorce can save your marriage. 

For the Richards, the conversation about how to break the news of their divorce to their kids led to an open and honest discussion about their marriage.

That, in turn, led to a discussion about how they communicated with each other, and why it was not working.  That conversation saved their marriage.

In my experience as a Raleigh divorce attorney, I have heard client after client explain why their marriage fell apart.  Frequently, they describe little problems that were never effectively addressed.  Five, ten or twenty years later, those little problems had become major problems; just like the problems the Richards describe in the article.

I frequently work with couples that have lost the ability to effectively communicate with each other.  My perception is that many of these couples could have avoided divorce if they had worked on more effective communication during the marriage.  The Richards’ story is a perfect example of this idea.  From countless conversations with marital and family therapists, I understand that their experiences support this idea as well.

I am not a marriage counselor or a mental health professional.  But, I am married and I work with divorced and divorcing couples every day. 

As shown by the Richards’ story, and my own work with divorcing families, you may avoid divorce by having a difficult but important conversation with your spouse that begins something like this:  “If we ever get divorced, what would be the cause?  What can we do to address that now?”

Better to explore these issues now, rather than years down the road in my office.

 

Randolph (Tré) Morgan III is an experienced family law attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas.  He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, paternity, guardianship and other family related matters.  

Unexpected Costs of Child Custody Battles

There are many costs involved in fighting a custody battle in court.  Some of these costs are obvious;  attorneys’ fees, delays in reaching resolution, acrimony and stress for parents, families and children are par for the course in a child custody lawsuit.

But, as Halle Berry’s recent custody battle highlights, custody fights can take a toll on all areas of the parents’ lives, including their careers.  

Berry recently left the set of a movie she was filming due to her custody battle.  While we can’t know for sure, I would venture to guess that she gave up a large sum of money when she left that set. 

Berry has the luxury of leaving a high paying job to manage the stress, work and trauma of a custody battle. She will easily find jobs in the future and she will hardly miss the income from this one movie. 

But, most of us cannot afford to sacrifice a job to keep up with a custody lawsuit.  Therefore, we have to manage the stress, time demands, emotions and financial costs of a custody battle while also trying to keep our jobs.   Many parents find this very difficult, but only discover the difficulties of litigation after they are neck deep in the quicksand of a lawsuit.

Before you decide whether to resolve your child custody dispute in court, analyze whether you can afford all of the potential costs.  If you have any doubts, I would encourage you to investigate non-litigation options before filing a lawsuit.

 

Randolph (Tré) Morgan III is an experienced family law attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas.  He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, paternity, guardianship and other family related matters.  

Common Law Marriage in North Carolina

My last post discussed the laws relating to unmarried domestic partners, i.e. couples who have lived together for a significant period and acted like they are married.

 One of the biggest misconceptions about the law of marriage in North Carolina is that there are “common law wives” or “common law husbands” in this state.  North Carolina does not grant common law marriages.

Other states do recognize common law marriages.  And, if two people were common law spouses in another state, and then moved to North Carolina, North Carolina may recognize the common law marriage from the other state. But, in or order to get married in North Carolina you have to have a marriage license and a marriage ceremony (in the courthouse or otherwise). 

Because North Carolina does not recognize common law marriages, North Carolina couples that have lived together, but have never been married do not receive the same rights accorded to married couples. 

These rights are significant.  Some of the most important ones are:

–  The right to ask the court to equitably divide property at the end of the relationship;

–  The right to seek financial spousal support from the other party at the end of the relationship;

–  The right to take a share of a spouse’s estate at their death (“elective share” in legalese); and

–  The right to receive spousal benefits from certain retirement plans and pensions.


The bottom line is that is that if you have any questions about whether you are legally married in North Carolina, you should contact a North Carolina family law attorney.  Otherwise, you risk missing out on important protections if your relationship comes to an end.

 

Randolph (Tré) Morgan III is an experienced family law attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas.  He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, alienation of affection, criminal conversation, parentage, guardianship and other family related matters.  

Online Legal Divorce Forms and Separation Agreements

Over the last few years, financial struggles have caused many people to look to online services for help in resolving their divorce issues.  These services typically provide low cost form separation agreements that can be purchased, downloaded and then completed by a couple.  These forms can typically contain provisions for property distribution, alimony, post-separation support, child custody, child support and separation.

I strongly support the movement to help people resolve divorce issues and reach separation agreements at a reasonable cost.  However, there are significant risks with using these online divorce agreements.

In this series of articles, I’ll address some of the issues that need to be considered before choosing to use online divorce forms and separation agreements.

Perhaps the biggest issue with these online divorce forms is that the companies specifically state on their websites that the forms are not a substitute for solid legal counsel.  For instance, LegalZoom.com states the following on the front page of its website (albeit at the bottom in a smaller and lighter font):

“Please note that LegalZoom is not a law firm, does not act as your attorney and is not a substitute for the advice of an attorney. Rather, it helps you represent yourself in your own legal matters. If you seek representation, are involved in litigation or have complex legal issues that cannot be resolved on your own, we recommend that you hire an attorney”.

Further, the online documents I have seen from clients contain a similar disclaimer in bold print on the front page of the form.

 

Specifically, the phrase “complex legal issues” presents a problem.  How exactly is someone who is not an expert on North Carolina family law supposed to know whether they have a complex legal issue?  How do you know whether this online legal form is going to be legally sufficient for your particular case?

 

One specific issue that I have seen is this:  Many clients use these online forms and believe that the matters in the agreement are forever settled.  Then something changes and the other party files a lawsuit that would alter some part of the agreement.  They typically tell me “I would not have agreed to this agreement if I had known that it could have been changed later by a court.”  Any North Carolina family law attorney could have warned about that issue up front.  That is the kind of information that people need to know before they sign any agreements.

 

In my mind, using an online separation agreement form is not necessarily a bad decision.  But, using an online separation agreement without at least reviewing it with a family law attorney may well cost you more in legal problems down the road then you are ever likely to save by avoiding the limited expense of some up-front advice by a knowledgeable lawyer.

 

In the next post, I will discuss some privacy issues with online separation agreements.

Randolph (Tré) Morgan III is an experienced family law attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas.  He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, alienation of affection, criminal conversation, parentage, guardianship and other family related matters.  He is skilled in litigation, mediation, collaborative divorce, arbitration and traditional negotiation.

Why Family Law is Different

Family law cases are different.  They cannot be handled like a typical business law, personal injury or criminal case.  But, these differences arise not so much from the technical aspects of a case as the practical aspects.  From a technical standpoint, the rules of civil procedure and evidence apply to family law cases, as with other cases.  Like other types of cases, there are statutes and case decisions that impact family law matters.

 

But, practically speaking, family law cases are very different.  I am compelled to be a family law attorney because of this difference.  As I see it, the following factors make family cases truly unique among legal practice areas:

 

1.  Emotion:  Emotion is present to some extent in every kind of case.  But, emotions run incomparably high in family law cases.  Emotion is often the driving force behind family law litigation (as opposed to negotiated cases).  Family law attorneys spend large amounts of time sorting through and managing emotions.  After all, it is rare for a business owner to cry when discussing a contract violation; but, family clients frequently cry when discussing a divorce.  This only makes sense; most people are far more emotionally tied to spouses and children than to a business or money.

 

2.  Ongoing relationships:  Most types of legal matters do not involve ongoing relationships.  Businesses are happy to part ways when a deal goes bad; injured people never need to see the defendant again; victims and criminals don’t need to talk on the phone.  But, in most family law cases, maintaining and building the relationship between clients is crucial.  Parents cannot effectively co-parent if they hate each other.  Relationships with former in-laws, friends, and church families can be destroyed if the parties to a case sacrifice their own ability to communicate with each other.  The need to preserve these relationships makes family cases unique.

 

3.  Children:  A divorce can shake the bedrock of children’s lives.  If the two most important people in a child’s life wage war on each other, then the child suffers the most.  This curtails the parties’ ability to launch unrestrained attacks on each other.  This is almost never a factor in other types of cases.  But, the potential impact of the case on children is an omnipresent consideration for family law attorneys. 

 

The realities of family law and families require that these cases be handled differently.  Unlike other types of cases, “scorched earth” strategies typically do more harm than good.  Not every lawyer is equipped with the skills, intuition and heart necessary to effectively handle these matters. 

 

Randolph (Tré) Morgan III is an experienced family law attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas.  He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, alienation of affection, criminal conversation, parentage, guardianship and other family related matters.  He is skilled in litigation, mediation, collaborative divorce, arbitration and traditional negotiation.