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SEPARATION AGREEMENTS: DO I NEED ONE?

It may come as a surprise to some to learn that, in North Carolina, being “legally separated” from your spouse is relatively easy.  Proving you are legally separated is another matter entirely.

To be “legally separated” in North Carolina, all that is necessary is that you and your spouse live “separate and apart” with the intent on the part of at least one of the spouses to continue to live separate and apart in perpetuity and not resume the marital relationship.  Living “separate and apart” means, generally, living in two different residences (sleeping in separate rooms or beds is not generally sufficient) and holding yourself out to the world as being separated.

Before either spouse can file for an absolute divorce in North Carolina, the filing spouse must be legally separated for at least a year.  Filing a verified (by a notary) complaint for absolute divorce alleging that you have been legally separated for the requisite amount of time is sufficient to prove you are legally separated if the opposing spouse is not contesting the date of separation.  Otherwise, having an executed separation agreement or filing an action for divorce from bed and board may be necessary to prove that you are legally separated.

SEPARATION AGREEMENTS: THEIR MANY USES

If you don’t need a separation agreement to be legally separated, or even to get a divorce, then why bother to execute a separation agreement at all?  The long and short answer is: because separation agreements are an incredibly useful and cost-effective means of simplifying the whole divorce process.

PROVING THE DATE OF SEPARATION

While it is perhaps the first and least of what it can do for you, it is nonetheless important to begin: a separation agreement can be used as evidence to establish exactly when the legal separation started.  For purposes of determining when either spouse can file for absolute divorce, this is incredibly important for the reasons already stated above.  A good separation agreement can likewise spell out that any separation of the parties was mutual and voluntary and that both parties are “estopped” (that is, precluded from) claiming the separation was anything but mutual and voluntary.  It can stipulate that both parties will agree to wait the required time to initiate a nice and tidy action for absolute divorce rather than trying to initiate any messy action for divorce from bed and board—a legal action which is by nature more contentious because it requires allegations and proof of marital misconduct to be brought against the offending spouse and which is more or less only useful if one of the spouses is seeking an equitable distribution of the marital property and debt and the time required before the spouse can file for divorce has not yet elapsed.

DATING AFTER SEPARATION

Secondly, and depending on your circumstances, perhaps just as important, proving legal separation is important for re-entry into the dating scene.  Let’s say you start dating someone right after you are legally separated.  A suspicious spouse may suspect you were actually dating (and engaging in sexual relations with) this new love interest prior to the date of separation.  The suspicious spouse may try to use acts of post-separation sexual relations to prove pre-separation marital misconduct.  If, as part of the divorce action, the dependent spouse (the spouse who needs money to support him or herself) asks the supporting spouse (the spouse who generally provided for the family, financially speaking, during the marriage) for alimony, and the supporting spouse can prove that the dependent spouse engaged in “illicit sexual behavior” with the “new” romantic interest prior to the date of separation, then the claim for alimony may be barred.  A separation agreement that spells out exactly when a couple separated can let the dependent spouse know when it is “safe” to start dating.  That said, engaging in sexual relations with another person while you are still married is still, legally speaking, adultery, and still technically a crime in North Carolina, even if an unprosecuted one.

The above also matters because North Carolina is one of those states that has preserved “heart balm” torts, specifically, Alienation of Affection and Criminal Conversation.  The aforementioned are suits that the suing spouse can bring against the new romantic interest for, effectively, romantic actions that occurred prior to the date of separation which “alienated” or “seriously diminished or destroyed” the marital relationship between the spouses.  While no acts occurring after the date of separation can give rise to actions for alienation of affection or criminal conversation (the latter being a legal euphemism for adultery or fornication which occurs prior to the date of separation), post-separation acts can be used to corroborate acts which occurred prior to the date of separation.

A benefit of a well-drafted separation agreement is that the separation agreement can include a provision wherein your spouse agrees not to interfere with your new love life going forward and further agrees not to bring any “heart-balm” related legal actions against any romantic interest you may have.

EVERYTHING BUT THE DIVORCE

Perhaps the best reason to execute a separation agreement is its capacity to address and settle nearly all the issues related to divorce in one fell swoop.  Alimony, Post-Separation Support, Child Custody and Support, Division of Marital Property and Debt.  All of these issues can be settled via a separation agreement and all can be done without further judicial involvement and bureaucratic oversight.  Except for the divorce itself, almost any and every issue related to the divorce can be settled via a properly executed separation agreement without all the emotional (and financial) wear-and-tear that is the litigation process.  Litigation is inherently a more costly option: there are attorney’s fees, court and filing fees, and mandatory responses to intrusive and potentially embarrassing discovery requests.  With a separation agreement, you don’t have to put your fate (or the fate of your property or children) in the hands of a judge who may not see things the way you see them.

What’s more, because you’re dealing with everything all at once, as it were, and on your own timetable, you can trade across the board.  Does your spouse really want X in the property settlement?  Then maybe he agrees to give you Y time with the kids.  If you go to court on these issues, they will be heard and litigated separately on the court’s schedule and again you’ll be depending on the judge to interpret the evidence in your favor with the limited knowledge and evidence you and your lawyer can give him or her in the space of a single hearing.  With a separation agreement, you and your spouse control the timetable, the negotiation process, and ultimately, the results.  And you do so while minimizing the emotional and financial toll—a separation agreement (because it is and requires agreement, a meeting of the minds of both parties) implies and requires a more business-like arms-length negotiation process wherein both sides work together to try to find a compromise that each can live with. A lawsuit is by definition an adversarial process, an us versus them scenario where both sides are metaphorically slugging it out to see who can “win” on any individual issue.  Both parties’ control over the process is lost, ceded over to the courts, and both sides lose emotionally by having to engage in the process in the first place.

SEPARATION AGREEMENTS: THE BEST “EVERYTHING BUT THE DIVORCE” MONEY CAN BUY

In short, if you want to save yourself some money, time, and heartache, and if you believe you and your hopefully-soon-to-be-ex-spouse can act reasonably in your own best interests, it is almost always preferable to try to come to terms via a separation agreement rather than through the litigation process.

If such is not possible however, well then, there’s always litigation.

Child Support in North Carolina

YOUR FRIENDLY NEIGHBORHOOD PRIMER ON CHILD SUPPORT
As a lawyer dealing primarily with domestic issues, one of the first questions I am often asked after a prospective client tells me his or her situation is, “How much child support will I have to pay if [insert hypothetical visitation schedule here]?” And I believe my answer to that question often comes as a disappointment—that, past the point of assisting the individual in showing the Court why they are fit and proper to have the child for as much time as desired and why it is in the child’s best interest and welfare that this should be so, I have very little (read: practically nothing) to do with how much child support any individual pays. That is not a comment on my, or any lawyer’s ability; it derives from the fact that, by-and-large, with certain exceptions, a few but not nearly all of which I’ll mention briefly, the determination of how much child support any North Carolina parent pays is largely (read: almost entirely) determined by the North Carolina Child Support Guidelines and the supporting parent’s own circumstances.

AN EXCEEDINGLY BRIEF HISTORY OF THE CHILD SUPPORT GUIDELINES
North Carolina Gen. Stat. § 50-13.4 requires the Conference of Chief District Judges to prescribe uniform statewide presumptive guidelines for determining the child support obligations of parents and to review them periodically. The guidelines apply as a rebuttable presumption in all legal proceedings involving the child support obligations of a parent—this means that, if a parent wishes to deviate from the guidelines, the burden is on that parent to prove to the court, by the greater weight of the evidence, that application of the guidelines would not meet or would exceed the reasonable needs of the child considering the relative ability of each parent to provide support, or that application of the guidelines would otherwise be unjust or inappropriate. There is an exception here – if the parents of the child have executed a valid, unincorporated (as in, unincorporated into a court order) separation agreement determining a parent’s child support obligations and an action for child support is subsequently brought against the supporting parent, a rebuttable presumption applies that the child support settled on and agreed to in the separation agreement is reasonable to meet the needs of the child even if it deviates from the child support guidelines. The court will order child support in the amount agreed upon in the separation agreement unless it finds, by the greater weight of the evidence, that the amount of support is unreasonable taking into account the child’s needs and those factors enumerated in North Carolina Gen. Stat. 50-13.4(c). If the court deviates from the guidelines, it must make written findings (1) stating the amount of the supporting parent’s presumptive obligation as determined pursuant to the guidelines, (2) determining the reasonable needs of the child and the relative ability of each parent to provide support, (3) supporting the court’s conclusion that the presumptive amount is inadequate or excessive of that the application of the guidelines is otherwise unjust or inappropriate; and (4) stating the basis on which the court determined the amount of child support ordered.

CALCULATING CHILD SUPPORT, OR, HOW I LEARNED TO START WORRYING AND HATE MATH
Working off the assumptions and presumptions outlined above, the determination of child support thereafter comes down to what I like to refer to as “plug and chug”, that is, plug in the various numbers and variables as outlined in the North Carolina Child Support Worksheets (more on them later) and then press “Enter” on your pocket calculator or calculator app on your cell phone. The variables involved in determining child support are as follows:
(I) Monthly Gross Income. Income means a supporting parent’s actual gross income from any source including, but not limited to, employment or self-employment (salaries, wages, commissions, bonuses, dividends, severance pay, etc.), income from ownership or operation of a business, partnership, or corporation, rental of property, retirement or pensions, interests, trust, annuities, social security benefits, workers comp benefits, unemployment insurance benefits, disability pay and insurance benefits, gifts, alimony, or maintenance received from persons other than the parties to the custody action. If you have a question about whether something does or does not fall into the category of “income” for purposes of child support, your best option is probably to ask a knowledgeable domestic attorney or contact the child support enforcement offices and speak to a knowledgeable person thereat.
Child support calculations are based on the parents’ current incomes at the time a child support order is entered. When asserting any statement as to income to the court or child support enforcement offices, good evidence of current earnings would include pay stubs and employer statements. Business receipts and expenses are helpful if you’re self-employed (note that income from self-employment is defined as the gross receipts minus the ordinary and necessary expenses required for self-employment or business operation). These can be supplemented with copies of your most recent tax return to provide evidence of earnings over a longer period.
A word of caution: if the court finds that a parent’s voluntary unemployment or underemployment is the result of bad faith or the deliberate suppression of income to avoid or minimize child support obligation, child support may be calculated based on the parent’s potential rather than actual income. The amount of potential income imputed to a parent must be based on the parent’s employment potential and probable earnings level based on the parent’s recent work history, occupational qualifications and prevailing job opportunities and earning levels in the community.
If you have been paying child support payments for other children as a result of a court order, pursuant to a valid separation agreement or voluntarily for a reasonable and extended period of time, these payments may be deducted from your monthly gross income for purposes of determining child support payments in any new action for child support. For example, if you are currently residing with your natural or adopted children from, say, a previous marriage or from a new relationship, your “basic child support obligation” to the children residing with you may be deducted from your monthly gross income for purposes of determining child support in the action involving the children for whom child support is being sought. Your “Basic Child Support Obligation” to any natural or adopted children residing with you may be determined by reference to a form/document/table called the North Carolina Schedule of Basic Support Obligations—use of this table is fairly straightforward. Find what your income would be under the first column and then move right to the column with the number of your natural or adopted children currently living with you. For example, if your income per month was $2000, and you have two natural or adopted children from a new relationship currently residing with you and to whom you therefore have a “basic child support obligation”, your basic child support obligation to those children residing with you would be $558. You can thus subtract $558 from your monthly gross income when plugging in the monthly gross income variable into the appropriate Worksheet.
(II) Basic Child Support Obligation. Again, use of this table is fairly straightforward. This time, the “combined monthly adjusted gross income” will be based on both your income and the income of the parent seeking child support and the number of children will refer to those children for whom you both share joint legal custody and for whom support is being sought.
(III) Adjustments. “Adjustments” is the equivalent of the “miscellaneous” tab or “potpourri” section on Jeopardy. Relevant factors that don’t fall under the categories of income or basic child support obligation would be considered here. Those relevant factors include:
(A) Work-related child care costs, e.g. daycare or a babysitter while the custodial parent is at work. These costs will be added to the basic child support obligation and allocated proportionally between the parents based on their respective incomes.
(B) Health Insurance Premium. As with the work-related child care costs, the amount that will be paid by a parent for health insurance for the children for whom support is being sought should be added to the basic child support obligation and allocated proportionally between the parents based on their respective incomes. Payments made by an employer for health insurance and that are not deducted from the parent’s wages are not included. Where a child for whom support is being sought is covered by a family policy, only the premium actually attributable to the child is added. If that amount is not available or cannot be verified, the total cost of the premium is divided by the total number of persons covered by the policy and then multiplied by the number of covered children for whom support is being sought (children’s portion = total premium ÷ # of persons covered × # of children subject to order). The exact number to plug into the Worksheet is as follows: Health Insurance premium costs – child’s/children’s portion only.
The Court may also order that uninsured health care costs in excess of $250 per year be paid by either or both parents in such proportion as the court deems appropriate. The Court must order either parent to obtain and maintain reasonable health insurance coverage for a child if it is actually and currently available to the parent at a reasonable cost; if it is not available at a reasonable cost, the court must enter an order requiring the parent to obtain and maintain health insurance if and when the parent has access to such at a reasonable cost. Health insurance is considered reasonable in cost if it is employment related or other group health insurance.
(C) Extraordinary Expenses. The catch-all of the catch-all tab. Whatever these costs end up being, if any, they may be added to the basic child support obligation and ordered paid by both parents in proportion to their respective incomes if the court determines the expenses are reasonable, necessary, and in the best interests and welfare of the children.

FINDING WHAT WORK(SHEET)S FOR YOU
Once you have ascertained all the above numbers and proven them to the court’s satisfaction (or to the satisfaction of the child support enforcement officer to whom you are presenting your evidence), the time has come for you to “plug and chug” them or do the math and actually calculate your parental support obligations. In order to determine your correct child support payment, you must use the correct “Worksheet.”
Use Worksheet A when one parent has primary physical custody of all of the children for whom support is being determined. A parent has primary physical custody of a child if the child lives with that parent for 243 nights or more during the year. Do not use Worksheet A when (a) a parent has primary custody of one or more children and the parents share custody of one or more children (use Worksheet B, instead) or (b) when primary custody of two or more children is split between the parents (use Worksheet C instead). In child support cases involving primary physical custody, a child support obligation is calculated for both parents but the court enters an order requiring the parent who does not have primary physical custody of the child to pay child support to the parent who has primary physical custody of the child.
Use Worksheet B when (a) the parents share custody of all of the children for whom support is being determined, or (b) when one parent has primary physical custody of one or more of the children and the parents share custody of another child. Parents share custody of a child if the child lives with each parent for at least 123 nights during the year and each parent assumes financial responsibility for the child’s expenses during the time the child lives with that parent. A parent does not have shared custody of a child when that parent has visitation rights that allow the child to spend less than 123 nights per year with the parent and the other parent has primary physical custody of the child.
In cases involving shared custody, the parents’ combined basic support obligation is increased by 50% (multiplied by 1.5) and is allocated between the parents based on their respective incomes and the amount of time the children live with the other parent. The adjustment based on the amount of time the children live with the other parent is calculated for all of the children regardless of whether a parent has primary, shared, or split custody of a child. After child support obligations are calculated for both parents, the parent with the higher child support obligation is ordered to pay the difference between his or her presumptive child support obligation and the other parent’s presumptive child support obligation.
Use Worksheet C when primary physical custody of two or more children is split between the parents. Split custody refers to cases in which one parent has primary custody of at least one of the children for whom support is being determined and the other parent has primary custody of the other child or children. Do not use Worksheet C when the parents share custody of one or more of the children and have primary physical custody or split custody of another child instead (use Worksheet B). The parents’ combined basic support obligation is allocated between the parents based on their respective incomes and the number of children living with each parent. After child support obligations are calculated for both parents, the parent with the higher child support obligation is ordered to pay the difference between his or her presumptive child support obligation and the other parent’s presumptive child support obligation.
Assuming you’ve plugged in the right numbers in the right locations you will have, finally, your child support payment obligation.

AND THEN I CAME TO THE END . . .
If you find all of the above to be incredibly confusing and ridiculously complicated, congratulations and do not fear! You are not alone. As a domestic lawyer, I cringe when I am asked by current or prospective clients to “explain” or assist them in calculating child support payments and I have to give them . . . the above. Additionally, the above primer covers only the basics—there are numerous exceptions and caveats and reasons for deviation from the guidelines not covered herein which may apply in your case and which can change the calculation process and final payment number—no lawyer or judge or child support enforcement officer can know what your payment will ultimately be without talking to you and hearing all the circumstances of your situation. But if you are prepared and organized with all the information you need to calculate your child support payments before you approach or attempt the Worksheets and calculations, you will find yourself in a much better position than most.

And to you few, you brave few, that attempt these calculations without a degree in mathematics, I wish you well.

Should I hire an Attorney for my Traffic Ticket?

It is a common question that we hear in our office, or when someone approaches us at lunch.  Traffic tickets do not always appear to be serious criminal charges that will change our lives, so many people think that it may not be necessary to hire an attorney for this type of representation. 

You have a number of options.  You may:

            1.  just pay the ticket

            2.  go to court and represent yourself

            3.  hire an attorney to represent you

 

If you ‘just pay it off,’ you should know that you will be admitting responsibility or guilt (depending on the offense indicated on the citation) to exactly what you have been charged with, and all parts of that charge.  Many traffic citations have more than one charge, and if you pay off the ticket, you will likely be admitting to all the charges listed.  Each of these charges may have an effect on your Department of Motor Vehicle Driver License points, and also on your insurance points.  As most people know, you will lose your license if you accumulate too many driver license points.  Likewise, your insurance will increase, sometimes very dramatically, when you get insurance points.  So, just paying off your traffic tickets may end up costing you additional insurance, which may last for multiple years, and sometimes points can even cost you your privilege to drive.  In either case, the cost of increased insurance or losing your license can be considerably more expensive than the cost of an attorney who represents clients in court on a daily basis. 

The next choice you have is to go to court and represent yourself.  This is almost always an option.  Our United States and North Carolina Constitutions allow almost anyone to represent himself or herself in most courts.  Attorneys are not necessarily smarter or more talented than non-attorneys, but they represent clients everyday.  When someone does something everyday, they usually become skilled at such work.  Also, with licensed attorneys, we are obligated by law to know the law and know the consequences of representation.  In other words, in most cases, we can advise a client on the ramifications of different  dispositions or how the way a ticket is handled in court will affect your future insurance or driver’s license.  

Some people fix their own cars and plumbing and install new circuits in their electrical junction boxes in their homes.  If a person knows exactly what he or she is doing, and has the proper skills, this can be fine.  Of course, if you do not fix your car properly, or you do not connect your pipes right, or the connection you made in your electric box is faulty, such mistakes can be costly and even dangerous.  So, the money you save on a mechanic, plumber or electrician may be nothing compared to the damage or injury done.  The same can be true when you try to handle a traffic ticket on your own.  You should know that the law prohibits a District Attorney or Assistant District Attorney from giving advice about how a particular result or disposition of your ticket will affect your insurance or your license.  So, do not look to the opposition for help. 

Your final option is to hire an attorney to represent you with your traffic offense.  In most cases, the attorney can appear for you and you will not have to miss a day from work or anything else you would rather do than go to court.  Of course the attorney will develop an understanding of your individual driving record and driving needs and concerns.  From there, he or she will navigate through the most beneficial result to try to prevent an increase in your insurance rates or detrimental points against your license.  Not every representation can result in a dismissal or significant benefit to the client, but an attorney who practices every day will be in an excellent position to seek a disposition that protects you, your money and your driver’s license. 

At DiRusso & DiRusso, most traffic offenses can be handled with one phone call to our office.  And, in most cases, we can appear for you and you will not have to come to court.  When you call our office we will tell you the exact cost of representaing you for your traffic ticket and what steps are necessary to assist you.