When can I starting dating again?

North Carolina has an Alien of Affection statue. However, the statue only applies up to the date of separation from your spouse.  After you have separated, you may begin dating.

If your divorce is contested, you may wish to consult your family law attorney before beginning to date. Although you are legally allowed to begin a new relationship, it may be used in court to call your creditability into question. If there is an adultery claim against you, your spouse may try to use the fact you began dating immediately after the separation to bolster the claim.

Consulting your attorney before beginning to date may not be romantic, but knowing your options may protect you from a lengthy and acrimonious legal battle.

Want to Spy on Your Spouse? See Your Lawyer First!

Recently, a NC jury held a man liable for $25,400 for using a keystroke monitoring program to access his wife's computer. Up until this point it was believed this behavior was allowed as it was not technically intercepting a message but rather reading stored information. Read more about the case here (subscription required), or click here to read the news article. If you have any questions, contact your family law specialist.

What if my spouse won’t sign the divorce papers?

Although the lack of cooperation can be frustrating, North Carolina law says that if you have been separated for at least a year and a day you can file for divorce. The court will grant the divorce based on the length of separation. Your spouse does not have to sign the divorce papers for the divorce to be valid, nor does your spouse have to consent to the divorce. 

In most circumstances, a divorce alone will not resolve your property rights in a manner that is satisfactory to most people.  You will want to negotiate a settlement with the other side to try and reach a satisfactory resolution.  If he/she still refuses to sign the final settlement documents (separate from the actual divorce), you may need to have a judge resolve your conflict.

It is important to know that you lose certain rights upon the entry of a Divorce Judgment.  Consult with an attorney about those rights before proceeding with a divorce on your own.

I called a law firm and they wouldn’t answer one quick question over the phone! Where do I find answers to my family law questions?

In general, most family law attorneys will not answer an initial legal question over the telephone for a number of practical reasons. 

First, almost no question in family law is ever simple! Second, it would be impossible for any attorney to know all of the facts of your divorce case with a five minute phone call in order to give you accurate answers. An inaccurate answer, or one without all of the facts, could have a very detrimental affect on you and your case.

Most family law firms receive a large volume of calls on a daily basis. Many of those calls are handled by experienced paralegals so that the attorneys can work with existing clients. That attention and dedication to clients is the same attention and dedication that you should expect from your attorney during your divorce.

I want to leave, but my spouse is threatening to sue me for abandonment!

This may be the #1 most asked question a family law attorney hears.  Although this sounds like a scary threat, it has little practical effects in most courts.  North Carolina is a “no-fault” divorce state so abandonment is not pertinent to an absolute divorce. North Carolina Family Law only allows for an absolute or uncontested divorce under two grounds: separation for 12 months (link to Blog #3) or insanity. You simply cannot sue for “abandonment.” The abandonment threat has its roots in old law when a spouse was entitled to alimony or a divorce only if it could be proved that abandonment or some other fault factor had occurred. That law changed in 1995 allowing for alimony to be based on the economic factors only.

However, you should be aware that abandonment in some cases may be a factor when the judge determines the amount and length of alimony and the equitable distribution of property. North Carolina family law considers “abandonment” to have three parts: (1) one spouse brings cohabitation to an end without justification, (2) without the consent of the other spouse and (3) without the intent of renewing it. All three parts must be proved in order to claim abandonment.  That said, each individual judge values the fault factors for alimony, like abandonment, differently.

Before leaving the marital home, it is always best to consult with a family law attorney to make sure your rights are legally protected. An experienced family law attorney will help you determine if additional steps should be taken to secure your property and to retain custody of your children before you leave home.   The attorney can also help you determine what, if any, impact abandonment will have on your case.

I can’t afford to move out. Can I still separate from my spouse while living under the same roof?

Sleeping in two separate rooms in the same house is most likely not going to be considered a separation for divorce purposes. As long as you continue living under the same roof, separation as required by law can be difficult to prove.  One family thought that they would literally put a brick wall through the middle of the house to “separate,” but the Court did not consider that a separation.  However, another Court allowed one party to live in a house in the back yard of the marital residence and that was considered separation for divorce purposes.

Continuing to live under the same roof may increase emotional conflicts and may also have negative consequences on your case.  These consequences include the potential length of alimony payments, the valuation date for property distribution and child custody.

Moving out also has its own problems, such as who will pay the mortgage on the marital residence. If you are contemplating separation, seek legal advice prior to separation to help you be prepared and to plan the appropriate time and method for separating.

Do I need a signed document to be legally separated in North Carolina?

The short answer is no, you do not need a sign a document to be “legally separated” in North Carolina.  To be legally separated in North Carolina, the married couple merely must live separate and apart with the intention of one or both parties that it be permanent.  A Family Lawyer will not typically advise you to move out of the marital home without a plan in place.  There is a complicated and little used procedure called in North Carolina called Divorce from Bed and Board, which is a judicial determination of a legal separation.

The better answer is that people normally want to resolve their marital disputes with a signed Separation Agreement.  This document will affirm that the parties are legally separated, determine the date of separation and resolve issues regarding the parties’ finances and sometimes their children.  You do not need a Separation Agreement prior to being “legally separated,” but it is an essential piece to resolve your family conflict.

Determining the date of separation can sometimes be a grey area. For example, if you separate and your spouse moves back in for any reason, there may be a disagreement over the date of separation. Since you must be separated for more than a year to file for divorce in North Carolina, disagreement on the date of separation may adversely affect the timing of your divorce. 

Remember the divorce merely ends the legal relationship between husband and wife.  A divorce does not resolve issues such as property distribution, child custody, or financial issues.  You can work on resolving these issues during the one year separation period required to divorce or even better, prior to a separation. 

There are certain rights that you lose upon divorce so you should be fully advised about your rights under North Carolina law before proceeding on your own. Further, when you move out of the marital home, you may not be allowed to re-enter.  So, planning ahead for the best time to separate is of utmost concern.  Before you make any life-changing decisions regarding separation or new living arrangements, consult with your family law attorney.

How much will it cost to use a lawyer for my divorce case in North Carolina?

It would be great if there was an easy answer to this question, but attorney’s fees vary greatly based on the services needed and other factors. Every case is unique and has differing levels of complexity (Will there be alimony? Child Support? Are there marital assets to be divided?). For this reason, most attorneys will not quote a set or flat cost for your case.

 In general, fees are charged at the attorney’s hourly rate. In family law, you will typically make an initial payment to a trust account often called a “retainer.” All costs are billed against that retainer. The amount of the retainer will vary depending on the unique circumstances of your case. After you have had an initial consultation with one of our attorneys, they will tailor the initial deposit needed based upon the work involved in your case.

Several other factors affect how much your case will cost:

• There is no way to know in advance what steps the other side will take or how much they will fight over minor issues. This may increase your costs. 

• You can only “settle” your case when the other side agrees with you on all issues. Sometimes this may require more negotiation than in other cases.

• It may be very difficult to get legal, financial, or other necessary documents from the other side in the case, and your lawyer may have to take steps in court to obtain the documentation needed to settle or litigate your case. 

• You may have signed a document or made decisions without good advice and now find the need to try to undo your current situation. 

Our firm does handle some issues on a flat fee basis such as drafting some documents and the absolute divorce (remember, this just ends the relationship and does not normally resolve your financial or children’s issues in a favorable manner). What is important is that you get fully informed about your case by having a consultation with good family law attorney, so that you can understand the legal fees that will be necessary.

8 Reasons to Reconsider Moving Out of the Marital Home

The Hidden Costs of Moving Out of the Marital Home

Apartments are cheaper than houses, but paying for both an apartment and a house is the most expensive choice of all! Although this may be an emotionally difficult time, it is best to consult a lawyer specializing in family law before moving out of the marital home. Read more...

I'm Getting Divorced and I Want the House!

Keep the House at All Costs!

Family law attorneys are often told to “fight for the house!” Thousands of dollars may be spent on fighting for an asset that may result in a financial liability. Is this really the best course of action for you?

Emotional ties to the marital home are often strong. Parents may worry that moving children into a new home will be detrimental, especially during the emotional strain of a divorce.

However, determining if you will remain in the marital home must be a financial decision and not an emotion decision. Can you afford the rent or mortgage? Calculate the associated costs, including insurance, maintenance and upkeep, utility bills and the like. Those day-to-day costs will not change. Will you be able to afford the house when alimony and/or child support ends? What will your financial situation look like in one year? Five years?

If retaining the marital home does not make financial or practical sense, and if you will not be able to afford the ongoing cost without financial strain, it may make sense to thoughtfully examine other options. It is imperative that prior to moving out of the residence, seek legal advice.

Insurance Coverage Post Divorce

Insurance Questions after Your Divorce is Final

What insurance policies will you need to replace or change after your divorce? Are you eligible for COBRA? You may wish to separate out some policies. Remember that insurance is usually more than just health or auto – include any life, disability, and long term care insurance in your planning. How much will it cost to continue the policies on your own? These costs may influence what you need during a divorce settlement.

If you have dependent children, and are reliant on child support and alimony, you may want to ensure that your spouse maintains both life insurance and disability insurance.

Should I Remove My Ex-Spouse From My Insurance Policy?

If you are carrying health insurance on your spouse, you should not rush to cancel the policy. You may have a responsibility under COBRA to notify your spouse before canceling the policy. Also, in North Carolina, hospitals and doctors may attempt to hold you liable for medical bills incurred by your spouse. There are very limited ways to protect yourself when this happens. Do not get caught in this minefield. Speak with an attorney before canceling any insurance policy.

Will I Lose Insurance During My Divorce?

Insurance Coverage During and After Divorce

During the stress of determining division of assets, child support, and alimony, one question that can be overlooked is that of insurance coverage. Are you covered through health insurance held by your spouse? What about auto insurance, life, or long term care disability? Do you know what type of coverage you have, and what the policy limitations and coverage terms and conditions are? Have you changed your beneficiaries on your life insurance policies?

Sadly, sometimes the spouse holding the insurance either ceases payment during the divorce process or changes the type of coverage held. A good rule of thumb is to make sure you get receipts for payments, and check that the coverage hasn’t changed and is still in place by speaking with your carrier. You may wish to verify insurance coverage on a monthly basis until your divorce is finalized; if insurance is canceled because the premiums have not been paid, often it is difficult to get it reinstated.

5 Things to Do If You Are Stopped for Speeding in North Carolina

5 Things to Do If You Are Stopped for Speeding in North Carolina

Stopped for speeding? Here are a few things you should do when an officer pulls you over:

1. Leave your seat belt on and your hands in plain sight.
2. Never confess guilt.
3. Be polite and courteous.
4. Confirm the violation with the Officer.
5. Verify ticket fines and course of action.

Consulting a lawyer may help you navigate traffic court more easily.

Do I Really Need an Attorney for a Traffic Ticket?

Do I Really Need an Attorney for a Traffic Ticket?

At one time or another, it happens to everyone. You are driving along and all the sudden you see the flash of red lights behind you. You are being pulled over for a traffic violation. Do you fight it? Show up in court?  Lawyers who work with traffic violations can dramatically increase your chances of winning your case.Fees are typically much less than the increase in insurance premiums you might experience if you did not contest the ticket. Read more...

Do I Really Need a Real Estate Lawyer at my NC Home Closing?

North Carolina law does not require an attorney to be physically present when you buy or sell a house. To save money, many may choose to use an escrow agent to handle the closing. Still others may simply assume that real estate closings are basically the same, and the professionals involved in the closing are experienced and competent.

Purchasing a Home is One of the Most Important Decisions You Will Make

Nevertheless, purchasing a house is one of the largest financial decisions you make during your lifetime.  Hiring a lawyer to review your closing documents and to ensure you understand the “legalese” in the loan and other contractual documentation is small in comparison to the worth of your investment. A real estate attorney will also check to make sure there are no outstanding legal issues revolving around the title records. In today’s economy, that expertise is priceless.

For example, one woman wanted to purchase her brother’s home, which was in foreclosure. She worked out the initial transaction verbally with the bank, which required a substantial amount of upfront money to settle the outstanding mortgage payments and late fees. Before she signed anything, she had the foresight to call a real estate lawyer. To her surprise, the lawyer found several liens (including an IRS lien) against the house. What a surprise! Making that call saved her tens of thousands of dollars immediately and prevented her from making a very bad investment.

Do I Need a Real Estate Lawyer?

If you aren’t sure your particular circumstances require the services of a real estate lawyer, why not call a few firms and ask? Most lawyers are happy to answer a few general questions to explore if your needs would be better met with legal representation.

Why Creating a Family Elder Plan Now is Important

Elder Planning: The Best Gift You Can Give Your Family

This may be one of the toughest conversations your family will ever have. Planning for the future when we are planning for happy events – marriages, children, grandchildren – is easy, even joyful. Planning the future that may hold sickness and uncertainty is not so easy, and often it becomes a chore that families put off.

Some individuals get as far as setting up a health care medical directive (especially if there is a chronic, long-term illness) but don’t take the time to complete the other legal documents necessary to avert a crisis that requires immediate attention. A family member may no longer be able to care for themselves, or may not longer be capable of managing their financial and legal affairs. Assets, from large to small, may be in dispute among family members. Tensions may run high. Sadly, you or your family may be in the position of frantically trying to find legal documents, or set up medical care and how to pay for it at a time when emotions are running high and time is of the essence.

Proactively planning for your future is one of the best gifts you can give your family. Remember – if you don’t do it, the State of North Carolina will.

First Steps to Creating an Elder Plan

You’ve taken the first step – you are ready to think about creating your elder plan. What does that mean exactly? A comprehensive elder plan can include trusts, powers of attorney, living wills or health-care powers of attorney. You may want to use more complex techniques to avoid probate, minimize estate taxes, or protect your assets from nursing home expenses. It should also clearly include your health-care preferences and medical directives. Your elder plan should contain a customized combination of the documents that are right for you. Your elder care attorney will work closely with you to determine what fits you and your needs.

This blog is connected with the Conrad Trosch & Kemmy, P.A. law firm of Charlotte, North Carolina. Our law firm practices in several areas of law.  The material presented here is not legal advice, is not to be acted on as such, may not be current and is subject to change without notice. Viewing this blog or contacting Conrad Trosch & Kemmy, P.A. via email or phone does not create an attorney-client relationship. You may contact us by calling (704) 553-8221 or by visiting our website at www.ctklawyers.com.

Estate Planning 101: Do You Need an Estate Plan in Carolina?

I Don’t Have Big Estate – Do I Really Need Estate Planning?

Absolutely. One of the most common mistakes people make is assuming that their estate is too small to require any type of estate planning. The truth is, it doesn’t matter how large or small your net worth is, it is vital to have an estate plan.

What is an Estate Plan?

An estate plan determines what happens to you if you become incapacitated and what happens at your death.  Actually, you already have an estate plan, whether you know it or not. Deciding to have a will or not, how you title your assets, naming beneficiaries (or not) on life insurance or IRAs are all part of your estate plan.  The question for you is, do you want to control and understand any or all of this?

Your personal circumstances and your goals determine how simple or complex your plan will be. A typical estate plan usually contains a will, a power of attorney, health care power of attorney, and a living will.  Some estate plans may include trusts, too.

You should also ask your estate planning attorney how jointly owned assets and beneficiary type assets should be arranged to coordinate with the rest of your estate plan.

I’m Young, Why Do I Need a Will?

Most individuals start to think about making a will as they age. However, every adult, no matter how young, needs to have a will, especially if there are children or any type of property or assets. If you die without a will, the state of North Carolina will decide what to do with your estate.

 North Carolina has several laws that govern estate division if someone dies without a will. Those laws probably will not reflect your wishes. For example, if you are married and do not have any children, your parents will receive half of your personal property and real estate. This could leave your spouse in a very difficult financial position. Or, if you are unmarried and have no living biological relatives, North Carolina becomes the beneficiary of your assets.

If you don’t have a will, please call an estate planning attorney who can work with you to create a valid will to ensure your family and your assets are protected. During the conversation, inquire about designating someone as your power of attorney in case of your incapacitation.

This blog is connected with the Conrad Trosch & Kemmy, P.A. law firm of Charlotte, North Carolina. Our law firm practices in several areas of law.  The material presented here is not legal advice, is not to be acted on as such, may not be current and is subject to change without notice. Viewing this blog or contacting Conrad Trosch & Kemmy, P.A. via email or phone does not create an attorney-client relationship. You may contact us by calling (704) 553-8221 or by visiting our website at www.ctklawyers.com.

What Happens if Collaborative Law Doesn’t Work for My Divorce?

This is an excellent question, and one we hear often. Collaborative lawyers are committed to exploring various ways to achieve a fair and balanced settlement. If you can't reach an agreement no matter how hard you try, you can choose to use a neutral mediator or arbitrator to facilitate settlement.

What Happens if We Still Can't Reach a Divorce Settlement?

At the beginning of the collaborative process, both the attorneys and the clients commit to reaching an out-of-court settlement, whether through informal negotiations, mediation, or arbitration. If the process is unsuccessful, then the collaborative lawyers must withdraw from the case and assist their clients in retaining trial attorneys. This requirement ensures that both spouses and their attorneys are equally motivated to work as hard as necessary to avoid a breakdown in communication or in the settlement process.

This blog is connected with the Conrad Trosch & Kemmy, P.A. law firm of Charlotte, North Carolina. Our law firm practices in several areas of law.  The material presented here is not legal advice, is not to be acted on as such, may not be current and is subject to change without notice. Viewing this blog or contacting Conrad Trosch & Kemmy, P.A. via email or phone does not create an attorney-client relationship. You may contact us by calling (704) 553-8221 or by visiting our website at www.ctklawyers.com.

7 Reasons to Choose a Collaborative Law Divorce

As discussed last week, collaborative law requires open communication between you, your current spouse and the lawyers you retain. The long-term benefits to you and your family are one of many reasons why so many people are choosing collaborative law divorces. Here are 7 reasons to choose a collaborative law divorce.

1. Collaborative Law Divorce is Client Controlled

You are your spouse control the process and the outcome. Your destiny is in your hands rather than in those of a stranger – a judge.

2. Collaborative Law Divorce is Client Centered

You and your spouse are a vital part of the settlement team. You and your lawyer will work with your spouse and his or her lawyer to settle your case in an efficient and respectful manner that meets both parties’ needs.

3. Collaborative Law Divorce is Cooperative

Both parties are counseled and supported by their own attorneys as they work cooperatively with the other side to resolve issues.

4. Collaborative Law Divorce is Streamlined

The process requires voluntary disclosure, eliminating formal methods of obtaining information and procedural delays.

5.  Collaborative Law Divorce is Creative

You and your spouse are able to tailor the terms of your settlement to meet the needs of your family. Remember, divorce is as unique and individual as you are. What works for another family may not work for yours. Collaborative law gives you the opportunity to make sure your divorce is tailored to your own family needs.

6. Collaborative Law Means You Don’t Have to Go to Court

Everyone can focus on reaching a settlement without the recurring threat of going to court, the burden of the court’s timetable, or the lack of privacy that comes with surrendering the details of the clients’ private lives to the public record.

7. Collaborative Law is Family-Centered

Collaborative law emphasizes co-parenting and time-sharing arrangements that best meet the needs of parents and children. It means you don’t have to rely on arbitrary schedule created and imposed by a judge who doesn’t know you or your family.

8.  Collaborative Law Provides Good Guidance

In collaborative law you have the comfort of having independent legal advice from an experienced lawyer, but you also have the benefit of using neutral experts that are shared by the parties.

This blog is connected with the Conrad Trosch & Kemmy, P.A. law firm of Charlotte, North Carolina. Our law firm practices in several areas of law.  The material presented here is not legal advice, is not to be acted on as such, may not be current and is subject to change without notice. Viewing this blog or contacting Conrad Trosch & Kemmy, P.A. via email or phone does not create an attorney-client relationship. You may contact us by calling (704) 553-8221 or by visiting our website at www.ctklawyers.com.

Is Collaborative Law the Best Choice for My Divorce?

You may have heard about collaborative divorce. It is becoming a desirable choice for many couples who wish to divorce – but is it right for you?

What is Collaborative Law?

Collaborative law is an excellent alternative to having your case resolved in Court. This process resolves family law issues through settlement negotiations, but it has the advantage of removing the threat of litigation. How does collaborative law avoid costly and painful litigation? It is important to understand that, under the collaborative law process, all parties and their attorneys voluntarily exchange information and are committed to full, honest, and open disclosure of all relevant facts. Experts (accountants, counselors, or other professionals who may be deemed necessary) are jointly retained to ensure neutrality and to cut down on expenses. Therefore, if you and your spouse are able to communicate openly as you move toward divorce, collaborative law may be a good choice for you.

What is the Collaborative Process?

The primary method of progressing toward a settlement through the Collaborative Law process is the use of four way meetings attended by both parties and their attorneys. Usually each case begins with a four way meeting, at which the participants sign a Collaborative Law Agreement and identify documents that need to be exchanged. Once this Collaborative Law Agreement is signed any Court proceeding is immediately halted and everyone agrees to handle the matter out of Court.This encourages the parties to settle their case without the emotionally painful and public nature of a trial. Then, additional joint conferences are held as needed. Through the Collaborative Law Process, the parties are often able to settle their case without ever setting foot in Court. Additionally, the parties are able to be active participants in the resolution of their case. This will have untold intangible benefits for years to come.

What are the Advantages of Collaborative Law?

Collaborative divorce not only has economic advantages, but it also can spare your family the tremendous emotional distress that often accompanies litigation. It has added benefits in custody cases because it limits the strain on the parents’ relationship and allows you to more effectively co-parent with less antagonism right from the beginning.

This blog is connected with the Conrad Trosch & Kemmy, P.A. law firm of Charlotte, North Carolina. Our law firm practices in several areas of law.  The material presented here is not legal advice, is not to be acted on as such, may not be current and is subject to change without notice. Viewing this blog or contacting Conrad Trosch & Kemmy, P.A. via email or phone does not create an attorney-client relationship. You may contact us by calling (704) 553-8221 or by visiting our website at www.ctklawyers.com.

We Are Getting Divorced. Now What?

The unthinkable has happened. You and your spouse have decided to divorce. Whether it is a mutual decision or not, divorce can be a time fraught with emotion. Sadness, anger, grief, fear…all of these are normal emotions that you may feel. Unfortunately, just at a time when you may be experiencing such stress, there are many logistical questions to answer. Read more: