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.  

Do It Yourself Divorce Trap: Retirement Accounts

I received a call this week from a couple that handled their divorce without attorneys.  They had a mess.

They intended to divide the husband’s 401(k) retirement account as a part of the divorce.  However, they did not know that dividing this kind of account requires a special legal document called a Qualified Domestic Relations Order or “QDRO”. 

So, they obtained their divorce.  They then contacted the 401(k) administrator to divide the funds.  Only then did they find out that they needed a QDRO. 

Unfortunately, it will be far more complicated for them to divide this retirement account now.  What would have cost them less than $1,000 if they had involved attorneys in the beginning will now cost them several thousand dollars or more.

They called me to find out whether the account could be divided, whether a court could enter the QDRO now, and how much it would cost.  Needless to say, they were upset that their efforts to save money would cost them much more in the long run.

This just one real life example of why it is smart to consult a lawyer to handle the legal intricacies of divorce from the beginning.

 

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.  

Getting Divorced: What Should We Do With the House?

Perhaps the most common property division issue in divorce matters is “what do we do with the house?”

The marital home is a big issue for several reasons.  The house is often the largest asset that a couple owns.  Cash flow issues frequently create the need for more cash, creating a need to liquidate the equity in the house.  One spouse may be emotionally tied to the home for sentimental reasons.  The parents may want to keep the house for the sake of the children.  

Suffice it to say, there are often many issues at play when making decisions about the family home. 

That being said, most couples’ decisions regarding their home fall into one of the following options:

1. Selling the house

This is frequently done when a couple cannot afford to maintain the marital home as well as a second home for a spouse that moves out.   It also works for couples that no longer need a large home.  This is also the only option if neither the husband nor the wife wants to keep the home.

2. One party keeps the house. 

This may work when one of the spouses wants to keep the house, and the other spouse does not.   This is also common when the parties feel that is important to keep the children in the house for continuity.   Frequently one spouse “buys out” the other’s interest in the home.

  3. One party stays in the house for some period of time, then the house is sold.

This works for a lot of couples that need to buy time.  The couple has to then determine how the expenses of the home will be paid until the home is sold.

  4. The parties keep the home, but rent it to a third party.

This option is less popular, as most clients prefer to simply sell the house if neither wants to live there.  And, finding renters can be a challenge. However, in the days of declining equity, this option may allow the couple to avoid a loss on the sale of a home until the market turns around.

  5. Nesting

Nesting occurs when the parties keep the home and alternate time in the home.  This is an option when the couple puts a high priority on keeping the kids in the home.  The parents have to figure out where they will live on their “off” days, which sometimes requires keeping up three homes instead of just two. 

 

The marital home is often a central issue in a divorce negotiation.  There are many possible ways to address the house.  The important thing is that the couple finds the solution that works for them and their family.  In a collaborative divorce, the parties have the time, space, safety and advice to do just that.

 

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.  

Planning for College in Divorce

In my last post, I discussed the need to face the reality that sometimes divorcing parents cannot pay for college and fund their retirement.

In these cases, children can frequently obtain loans to pay for their college education.  In these situations, parents can still be a huge help to their kids by helping them learn about and maximize their college funding options.

One of the very best resources to learn about college funding options is the College Foundation of North Carolina (“CFNC”).  This non-profit has a tremendous website that helps students and parents learn about ways to pay for college and post-graduate education. 

CFNC’s website has valuable information on loans to students, loans to parents, grants, scholarships and other programs designed to help students pay for college.

In addition, CFNC’s website has tools to help all parents and students plan for college while they are still in high school through transcript and resume tracking.  Plus, when it is time to apply for college, the online tools allow applications to be completed and submitted online. 

Not every parent can afford to pay 100% of their kids’ college education expenses.  But, with the help of CFNC, every parent can help their kids find resources so that college can still be a reality. 

Online Legal Divorce Forms and Separation Agreements – Privacy Problems

Last week, I wrote about the need to consult an attorney prior to using an online separation agreement or divorce forms.  This week, I’ll discuss another problem with these forms: Privacy.

 

I have seen many clients that use these forms without an attorney.  Most of these clients record their separation agreement, child custody (co-parenting) agreement or property settlement agreement with the Register of Deeds.  They do this because something in the online form, the form’s instructions or something else on the internet told them that this recordation was necessary.

 

Unfortunately, once a separation agreement is recorded with the Register of Deeds, it becomes public record.  That means that anybody with a computer can easily look up, read and print your separation agreement if it is recorded with the Register of Deeds.  Anybody.  For any reason.  Friends, family, foes, members of your church, co-workers, etc…And I can tell you that people love to know the intimate details. Do you really want to give them access to that kind of personal information? 

 

There are some parts of a separation agreement and property settlement agreement that may need to be recorded with the Register of Deeds.  But, a good family law attorney can help you avoid making your entire agreement public knowledge.

 

I routinely advise clients to avoid this kind of public disclosure of their private lives.  After all, if you wanted the details of your separation to be public knowledge, then you could just go to court.  But, in North Carolina, there are ways to avoid making the terms of your separation public record. 

 

However, you would not know that unless you consulted a North Carolina family lawyer.

 

Online separation agreements and divorce forms can be useful.  But, there are risks in using these documents, and the loss of privacy is one of them.

 

Consulting a North Carolina family law attorney before using these online forms can save your privacy.



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.