Category Archives: Practice Areas


Believe it or not, divorce or separation between parties whose relationship with each other no longer functions in a workable manner can actually be a blessing, for both parties. A separation agreement or even a simple decision between the spouses that one or the other should move out, can be the first, healthy step in the process of “moving on” with one’s life. Difficulties arise however where the parties are parents of minor children and in order to “move on” with one’s life, one of the parties wants to move out of the city, county, or state altogether, and take the minor children with him/her. What can either spouse do or not do in such a situation?


This may seem obvious but parties can always simply agree as to how custody will work in the  event of, or after, a party’s vacating the marital residence. Assuming said agreement is properly executed, it is perfectly valid. If parties can agree as to how custody will work in the event of such, there is no need for either parent to initiate a custody action or involve the court in a proposed parenting plan.


If however, you know, or at any time realize that the other spouse will never agree to your relocation with the children or will not cooperate, a lawsuit will be necessary.

The first thing any parent should know is that the district court does not have the authority to order a parent to relocate (or to refrain from doing so). See Kanellos v. Kanellos, 795 S.E. 2d 225 (2016). The Court can (and will) however, prevent a minor child from relocating with a parent if it feels that relocating would work against the best interests and welfare of the minor child(ren). If a parent is requesting that the Court allow them to relocate the minor child(ren), the parent so requesting (or his/her attorney) will have to present the Court with evidence on a number of factors. Those factors were outlined by the court in the seminal case of Ramirez-Barker v. Barker, 418 S.E. 2d 675, 1991, and are as follows:

a) The advantages of the relocation in terms of its capacity to improve the life of the child;
b) The motives of the custodial parent in seeking the move;
c) The likelihood that the custodial parent would comply with visitation orders when s/he is no longer subject to the jurisdiction of the court of North Carolina;
d) The integrity of the non-custodial parent in resisting the relocation; and
e) The likelihood that a realistic visitation schedule can be arranged which will preserve and foster the parental relationship with the non-custodial parent.

If, after hearing evidence on the above, the Court determines that advantages to the minor child in relocating outweigh the disadvantages, the Court may, in its discretion, permit the relocation with the child. The Court is not obligated to do so. Parties should also note that, while, the court will hear evidence on all the above-named factors, it is at the Court’s discretion to decide how heavily (or lightly) to weigh any individual factor.

Parties should be prepared then, to provide evidence on each and every factor, in spades.
Although there are very few hard and fast rules in a relocation case, there are a few factors that show up time and again of which any parent wishing to relocate with a child should be cognizant. First, moving to be with your new girlfriend/boyfriend/romantic interest—not generally considered to be a good reason to uproot the child. Moving to be closer to family, especially family with which the child already has bonds, is a very good motive. If you are the parent looking to move, show the court evidence that a reasonable visitation schedule can be arranged that allows the minor child to continue to have a healthy, active relationship with the parent remaining behind.

If you are the parent looking to prevent the move, evidence showing that a visitation schedule would be unworkable is very helpful. The parent wishing to make the move with the child should present as much evidence as possible of the advantages of the move for the child: good school system, good neighborhood, opportunities for the child that are only available at the new location. In a relocation case, quantity counts. North Carolina is jealous of the children in its custody—the parent wishing to relocate with the child is the parent who will have the burden of convincing the court that relocation is in the child’s best interest. The onus for the parent wishing to prevent the location will be on showing the court, first, that s/he has a strong and current bond with the child and that such bond would be impaired by any change in the visitation schedule resulting from a relocation and second, that any benefits from the relocation to the child are, at the least, offset by the benefits to the child in staying.

Finally, it is important for both parents to remember that, respectfully, it’s not about you.
It’s about the minor child and how the move will affect him or her.



It is a truth universally acknowledged that “it” happens.  Parents get divorced.  And that leaves grandparents in a precarious situation.  What if Mom takes the child?  What are Paternal Grandma and Grandpa to do?  Is there anything they can do? In North Carolina, the answer is a solid Maybe.


Although it might seem obvious (“I’m the grandfather.  Of course I have grandparents’ rights!”), there are circumstances where grandparents of a grandchild may lack standing (the legal right to bring a particular cause of action or to request and be granted particular relief), to even petition the court to be awarded court-ordered time with their grandchild.  In North Carolina, biological grandparents have standing to bring an “intervenor” action for “visitation” (more on that in a moment) unless the child has been adopted.  If the grandchild has been adopted, the grandparents cannot petition the court for visitation with the grandchild unless the adopting parent is (1) a stepparent or blood relative of the child and (2) the grandparents have a “substantial relationship” with the child.  What constitutes a substantial relationship is determined on a case-by-case basis.  If the preceding conditions are met and if a custody action is pending between one parent against the other, biological grandparents can institute an intervenor action for visitation rights with the grandchild.   A Court can then, in its discretion, award visitation if it determines that such is in the best interest and welfare of the child.


In North Carolina, grandparents’ rights, as defined by statute, are somewhat limited.  N.C. Gen. Stat 50-13.2(b1) states, in part, that an “order for custody of a minor child may provide visitation rights for any grandparent of the child as the court, in its discretion, deems appropriate.”  While a reading of the above statute might suggest that grandparents have a clear-cut statutory right to see their grandchildren and as such, a cause of action by which to petition the Court for such, that is in fact not the case.

“Visitation” as relates to parents and “visitation” as relates to grandparents is not the same.  Generally speaking, when one parent is granted “custody” and the other parent is granted “visitation” what it means is that the parent who has “custody” of the child is the parent with whom the child will be residing primarily.  The parent who has “visitation” is the parent whom the child will reside with for some lesser time.  A more apt description than “custody” and “visitation” might be that one parent has “primary custody” and the other parent has “secondary custody.”

For grandparents however, “visitation” means something more along the lines of “see and spend time with socially” (note that this is not a hard legal definition it is just a de facto description of how it works out practically speaking).  Grandparents in North Carolina generally do not have standing to bring independent custody actions.  They have instead what are referred to as “intervenor rights.”  N.C. Gen. Stat. 1A-1, Rule 24(a)(2) states, in part, that upon timely application, “anyone shall be permitted to intervene [of right] in an action: when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or imped his ability to protect that interest.”  North Carolina courts have held that child custody proceedings are the types of transactions and a grandparent’s interest in being part of a grandchild’s life one of the types of interests which allows for intervention on the part of a grandparent into a custody action initiated by one parent against the other.  Unfortunately, as the name suggests, intervenor rights allow only for intervention in a suit that is already being brought by one parent against the other; it does not allow for grandparents to initiate their own custody action.  Grandparents who are concerned about the potential fallout of a custody action or who have a less-than-stellar relationship with any one of the parents may choose to intervene in a custody action even if they don’t feel their time with the grandkids is currently threatened.  A grandparent who does not join the original custody suit as an intervenor and who is later denied visitation by the custodial parent has no legal recourse unless the case goes back to court.

One statutory based limited exception to the above comes in the form of N.C. Gen. Stat. 13.5.  13.5 states that “in any action in which the custody of a minor child has been determined, upon a motion in the cause and a showing of changed circumstances pursuant to G.S. 50-13.7, the grandparents of the child are entitled to such custody or visitation rights as the court, in its discretion, deems appropriate.”  As the statute suggests, if there has been a substantial change in circumstances affecting the best interests and welfare of the child, a grandparent who is interested in visitation with the grandchild may bring a motion requesting such.


As noted above, generally speaking, grandparents cannot institute custody actions on their own.  They can only intervene in custody actions brought by one parent against another.  If however, grandparents wanted to file an action not just for visitation but for actual custody of a grandchild, the grandparents would have to prove that the grandchild’s parents have acted in a manner or engaged in conduct that is inconsistent with their paramount constitutional status as parents.

The Courts have repeatedly held that parents have a constitutional right to raise their children and a constitutional right to raise them as they see fit.  That constitutional right is not unfettered – there are limits (e.g. physical or emotional abuse of the child is verboten) but those limits are broad.  Generally, parents are given great latitude in terms of their individual parenting styles.  Grandparents seeking actual custody over their grandchildren will have to show the Courts that the parents have acted (or failed to act) in such a way as demonstrates that they have abrogated their rights and duties as parents.  In North Carolina, this means that the parents must have acted in a manner as would constitute grounds to terminate their parental rights pursuant to N.C. Gen. Stat. 7B-1111 (e.g., abuse, neglect).  Absent clear, cogent, and convincing evidence of such, a grandparent cannot be granted custody of the child over the biological parents.



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.


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.


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.


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.


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.


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

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.

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.

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.

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.

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.

Workers’ Compensation: No benefits If Impaired

Typically, if a worker suffers an injury at work and the employer regularly employs three or more employees, the injured worker is entitled to benefits provided in the North Carolina Workers’ Compensation Act.  However, there are some exceptions to what would otherwise be a compensable injury.

If an injured worker was injured due to his own intoxication, he or she may not be entitled to benefits.  This exception may be nullified in the event the injured worker was provided the intoxicating substance (alcohol or drugs) by the employer or the injured worker’s supervisor.  The mere fact that an injured employee was intoxicated may not be enough for the employer to escape liability.  The injury to the worker must be proximately caused by (as a result of) the worker’s intoxication.

Another exception to what might otherwise be a compensable injury is when the injured worker intentionally injures or kills himself or another employee.

Under certain circumstances, if an employer fails to comply with any statutory requirement or order of the Industrial Commission, the payments due to an injured worker with a compensable injury who was injured as a result of the willful failure of the employer to follow such regulations may be increased by 10%.

Likewise, if an injured worker has been injured as a result of not following prescribed safety procedures, the benefits due to that worker may be decreased by 10%.

Blood or other medically accepted tests may be used to determine impairment of an injured worker.

Basics of Workers’ Compensation

In North Carolina, with a few exceptions, any employer who regularly employs three or more employees must have workers’ compensation coverage for the employees.  There are exceptions for agriculture, domestic services and certain logging employers.  If an employee is injured at work and suffers a compensable injury, the employer or the employer’s workers’ compensation insurance carrier is typically obligated to pay for all medical costs which are authorized by the carrier, as well as all prescriptions and mileage to and from the medical provider, when the round trip exceeds 20 miles.  In addition, the injured employee, if excused from work by an authorized treating physician as a result of the compensable injury, is entitled to be paid 2/3 of his or her average weekly wage for the weeks the injured employee is excused from work.  The injured worker is not entitled to pay for the first seven days out of work unless he or she is out of work for more than 21 days.

Agricultural employers may be exempt from providing coverage and being subject to the North Carolina Workers’ Compensation Act unless they regularly employ 10 or more nonseasonal workers.  Sawmill and logging employers may be exempt from providing coverage and being subject to the North Carolina Workers’ Compensation Act if that operator employs less than 10 employees and saws and logs less than 60 days in any six consecutive months and whose principal business is unrelated to sawmilling or logging.

The medical and weekly pay benefits for an injured worker who suffers a compensable injury are no different for an undocumented worker or for a worker who is not legally employed.

Why is your Average Weekly Wage So Important in Your Workers’ Compensation Claim?

Workers Compensation is an insurance policy provided by North Carolina General Statutes.  Because these are benefits created by statute, the statute provides specific formulas to calculate the amounts due to an injured worker when he or she suffers any permanent injury or when in injured worker is entitled to weekly benefits when not able to work due to a compensable injury.  All of these benefits are calculated by using the Average Weekly Wage of the injured worker.  In many cases this may seem like an inaccurate method of determining what an injured worker should be paid.  For example, a 25 year old worker who is injured making $15.00 per hour will be paid the same amount for the same injury as a 61 year old worker.  Obviously the 25 year old worker has many more years for which he cannot earn as much money due to an injury, but the statute does not always account for this.

In any event, there must be a formula to calculate the amount due to an injured worker.  The first element of this equation is the Average Weekly Wage of that worker.  Chapter 97-2(5) provides several methods of determining this Average Weekly Wage (AWW).  The typical method for calculating the AWW is to total the wages earned during the previous 52 weeks of employment and divide that amount by 52.  There are provisions for adjusting this calculation if the injured worker missed seven or more consecutive days during that previous 52 weeks.  Also, if the employment prior tot he injury was for less than 52 weeks, the calculation can average the weekly pay for the period less than 52 weeks, providing doing so would be fair to both the injured employee and the employer.  In certain circumstances, it is appropriate to use the AWW of a comparable employee.

When an injured worker with a compensable injury is excused from work by his or her treating physician, he or she may be entitled to weekly benefits, typically referred to as Temporary Total Disability benefits (TTD). TTD is defined by the statute as 2/3 of the injured worker’s AWW.  This calculation can involve multiplying the AWW by as much as 500 weeks. This is one reason why the proper calculation is so critical.  Similarly, if an injured worker returns to work, but because of compensable injuries that worker cannot earn as much as he or she earned pre-injury, then that injured worker may be entitled to Temporary Partial Disability (TPD) for the weeks he or she is not able to earn the pre-injury wage, up to 500 weeks.

Additionally, when an injured worker is assigned a Permanent Partial Disability rating by a treating physician, the calculation of the value of that rating is determined by starting with the AWW.  This calculation can involve multiplying the AWW by up to 300 weeks.  This is another reason that the calculation of the AWW is so critical.

An injured worker is entitled to payroll records which indicate all wages earned during the 52 weeks prior to injury, and sometimes back even further.  There is even an Industrial Commission (the Industrial Commission is the court system in North Carolina for hearing Workers’ Compensation claims) Form 22 which should be completed by the Employer to assist in determining the correct AWW.  However, there can be mistakes on these forms and all calculations should be checked.  It is best to compare the earnings reported by the employer with tax returns and paycheck stubs.  As you can see, even a $1.00 difference in the AWW can means hundreds of dollars less than an injured worker should be receiving.  A $10.00 difference can mean thousands of dollars.

If I am injured at work, can I choose my own doctor?

This is a good, and well argued question. The short answer is that it depends.

First, if you are injured at work and you make a claim for Workers’ Compensation benefits, and that claim is denied, then you may seek treatment from any doctor you wish. The caveat is, in such a case, that you will be responsible for paying for that treatment, at least if and until you settle or win your Workers’ Compensation claim.

In the event you are injured at work and you make a claim for Workers’ Compensation benefits and your claim is accepted by the employer/carrier, then the employer/carrier will usually have the right to select a treating physician. This is not always the end of your opportunity to select your own treating physician. In some emergency situations, treatment may have begun before the employer/carrier has a chance to select a doctor of their own. In these cases, if treatment has already begun and is proceeding with a doctor you have selected, then a change may be only available if the employer/carrier makes a motion to change treating physician in front of the Industrial Commission, which is the court system for Workers’ Compensation claims in North Carolina.

Also, you may have an opportunity to make a motion to the Industrial Commission to change your treating physician if the employer/carrier had selected one for you and the treatment is not progressing properly. Your legislators in Raleigh have decided that in order to have your treating physician changed to a doctor of your own choosing, then you must prove beyond a preponderance of the evidence (more than halfway) that the change is reasonably necessary to effect a cure, provide relief, or lessen the period of disability. Your North Carolina legislators have also decided that when you are seeking to choose the doctor who will treat you, the Commission may disregard or give less weight to the opinion of a health care provider from whom the employee sought evaluation, diagnosis, or treatment before the employee first requested authorization in writing from the employer, insurer, or Commission. (N.C.G.S Section 97-25) You can find more information on the North Carolina Industrial Commission website at

So, while it is not easy to change your treating physician in an accepted claim, the law provides for a process in which to do this. It has been the experience in our office that most carriers want injured employees to return to work as soon as possible, and this usually means providing the best and most efficient medical care. Of course, insurance carriers have a natural interest in paying less for medical care and not paying for excessive tests and procedures.

Carriers appear to seek a balance struck between the expense of medical treatment and the quick return of a worker to gainful employment. This is not always something that feels like it is in the best interest of the injured worker.

When you have been injured at work and you face these issues, look for the help of an attorney who practices in this field and has dealt with these questions before.

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.

Welcome to the DiRusso & DiRusso Blog!

It has been our pleasure to serve the people of Surry County for over 23 years.  Our law office is located near downtown Mount Airy, North Carolina.  We take pride in the service we provide to our clients.  We understand that there are many choices for legal representation and we appreciate the opportunity to help those in our community and surrounding areas with their legal needs.

We believe that hiring local counsel is important in many cases.

At DiRusso and DiRusso, we are familiar with the local economy, the local employers, and the local court officials. Another advantage to hiring local counsel is availability. In larger cities, and in larger firms, the attorneys may not always be available and much of the interaction a client has may be with support staff, such as paralegals and legal assistants. At DiRusso and DiRusso, the attorneys are in regular contact with the clients, available by telephone, and regularly available for appointments.

At DiRusso & DiRusso, we have the legal knowledge and experience to protect you, no matter who or what is on the other side. We also have the compassion to know that you may be experiencing something very unpleasant and we are available to listen to you and seek solutions along the way. We are dedicated to our clients and show no allegiance to any other entity.   We not only counsel our clients on the current law, we provide statutes, rules, cases, and codes so that one may read the current law and have a deeper understanding of the relative law.

If you want to speak with a lawyer about your case, please call us today. There is never a fee for your initial consultation at DiRusso & DiRusso for Workers’ Compensation, Personal Injury or Social Security Disability cases.