How long does a court case, trial, or hearing last?

Short answer: Most cases take about one year for completion. 

There are generally a few phases to each civil case but the length of each depends on your attorney's strategy and the opposing side's willingness to cooperate. These phases include:

NEGOTIATION PHASE

Most cases are completed during the negotiation phase in the form of a settlement, mediation or arbitration.

• Settlement: is an informal form of negotiation where a case is usually settled before a lawsuit is filed. Legal fees are usually lower during this phase as there is no risk of a negative ruling  from a judge or jury. 
• Mediation: is generally court ordered in Superior Court (high dollar amount) case. The parties usually sit in separate rooms and the mediator travels between each room to try to reach common ground. If no agreement is reached, the parties move to a bench or jury trial. 
• Arbitration: is court ordered in District Court (low dollar amount) cases. A neutral attorney hears each side's argument and makes a ruling. This ruling becomes a court order if neither side appeals it and you can, therefore, forgo trial.

LITIGATION PHASE
If the negotiation phase does not grant you the relief in which you were expecting, you must file a lawsuit. Once you have filed a lawsuit you have reached the litigation phase which includes:

• Discovery: Each side will ask the other a series of questions to gather more information about the case. Sometimes a settlement is reached once each party sees what they're up against.
• Hearings: Motions are generally filed to keep certain evidence out and to resolve the case without a trial. The court will hear each side's evidence in a "hearing" before ruling on these motions.
• Bench or Jury Trial: A trial is your final opportunity to convince a judge or jury that you were wronged. The length of the trial depends on the number of witnesses each side will question. In my experience, most trials last between 1-3 days. Remember, the final ruling in your trial is binding unless you appeal it to a higher court.

POST-JUDGMENT PHASE
So you've won your trial!! Now, you must find out how to collect the money. In the post-judgment phase, you must search for the losing party's property, assets, and real estate to sell if they do not pay the judgment you've won.

• Execution of Property: While the losing party will be permitted to keep some of their property, the non-exempt property can be seized by the sheriff to satisfy their debt to you.
• Other Post-Judgment Motions: Once you have received an order requiring the losing party to pay you, they may still refuse to pay. You may then file a Motion to Show Cause and Motion for Contempt where they face jail time and fines if there is no valid reason why they have failed to pay.

If you have questions about your settlement, trial, or executing a judgment, contact me at (919)321-6569, Nastasia@KisalaWatkins.com or www.KisalaWatkins.com.

I can't pay child support, what do I do?

In NC, like most states, each parent has an equal duty to support their child. So, child support payments are calculated based on the income of both parents. The payments are then made to the person who has custody of the child the majority of the time.

To change the amount of child support based on a change in income, you must show the court that there is a "substantial change in circumstances." You must file a Motion to Modify Child Support showing that you are not willfully suppressing your income to avoid child support and that, based on the NC Child Support Guidelines, your payments should decrease. There are several factors that can assist in a modification of child support, including:

1. Change of income by either party
2. Financial responsibility to other children 
3. Cost of Health, Education and Maintenance of the child 
4. Any other permanent and substantial change 

Keep in mind that a modification of child support is only retroactive back to the date that the motion was served on the other parent. So file your motion to modify as soon as you are no longer able to pay the support amount as the original amount will otherwise continue to accrue. To calculate your potential child support payment go to the NC Child Support Agency website and enter the information requested.

If you have questions, contact me at 919-321-6569, Nastasia@KisalaWatkins.com; www.KisalaWatkins.com.

What if a court order is broken, ignored, or not followed?

What is a court order?

1. A court order is a document signed by a judge, magistrate or clerk of court
2. Binding the parties of the action (plaintiff and defendant)
3. Requiring that they do something or stop doing something

Examples of court orders include custody, child support, divorce, and restraining orders. 

What happens if one side does not follow the court order?

1. You must file a "Motion to Show Cause" asking the other side to show the court why the court order was broken.
2. The other side must either show that he/she has in fact complied with the order or show why they could not comply with the order.
3. If they cannot prove that they complied or give a good reason why they didn't comply, they will be found in Contempt of Court and face fines and/or jail time. 
4. The only way to not comply AND not be found in contempt is to show that your failure to comply was not willful.

Remember that court orders expire and steps must be taken to enforce the judgment within 10 years, otherwise it must be renewed. Restraining Orders must be renewed every year with a showing that you are still in fear of your safety.

For more questions about court orders, contact me at (919) 321-6569, Nastasia@KisalaWatkins.com, www.KisalaWatkins.com.

***Video credit https://www.youtube.com/watch?v=TPE5qcwJqqQ***

What is the difference between Annulment and Divorce?

What is a Divorce?

A divorce ends the bounds of marriage. In NC, you must be separated for 1 year before you can file for divorce (unless your spouse is incompetent). Because the marriage was lawful, you are entitled to a separation of the property purchased/earned during the marriage. If you're spouse engaged in marital misconduct (such as an affair) during the marriage, you may also be entitled to post-separation support and/or alimony.  Before or during filing, you must request post-separation support, alimony and a distribution of the marital property, otherwise, you lose your right to claim it. 

What is an annulment?

An annulment is an order from the court stating that your marriage never existed. This is very different from a divorce which simply ends an existing marriage. An annulment does not give you rights to post-separation support, alimony, or a distribution of the property as does a divorce. A major misconception is that the length of the marriage warrants an annulment, however, in NC this is not a factor.

Which marriages can be annulled?  
Bigamous marriages are void and are deemed to have never existed in NC. 
Upon application to the court, the following marriages can also be annulled:

1. Marriages between 2 people who are closer than 1st cousins (sister and brother)
2. When one party is under the age of 16, unless the woman is pregnant and the child is still alive 
3. Marriage under the false pretense that the woman was pregnant and no child is born within 10 months of separation
4. Permanent sexual impotence of either party

Despite these instances, a marriage that has been followed by the couple living together and the birth of a child cannot be annulled once one of the parties is deceased (unless the marriage is bigamous). 

For more information on annulments and divorces in North Carolina, contact me at (919)321-6569, Nastasia@kisalawatkins.com; www.kisalawatkins.com.

The 5 Stages of the Bar Exam

Every law school student has experienced the stress of your entire grade being determined by your performance on one final exam, fighting with your classmates to be at the top of the class, and eventually accepting that this may have all been done in vain because the promise of big law firm jobs no longer exists. However, nothing can prepare you for the stress that is...dun dun DUNN...The Bar Exam. While everyone's experience is different, here's my experience during the bar exam:

1. Anticipation

I've spent a full month gathering the information for the bar exam application but bar prep doesn't start for a few months. To get a leg up on my classmates, I start reviewing my weak subjects and looking at practice tests and example MBE questions. But Teen Mom is on, Scandal is on DVR and everyone is going out for wings tomorrow (can't miss that). Then the continuous thought of, "I'll start on Monday. Monday is the day!" carries me into May/January (when bar prep actually begins).

2. Boredom

Oh my gosh Becky....how long can this guy talk about friggin Easements!! I'd rather claw out my eyes than listen to these lectures for 3 hours every day. And how am I supposed to concentrate when Facebook, Instagram, TMZ, and Candy Crush are literally calling out to me like an addiction. I'm gonna b.s. for 30 minutes and then get back to Landlord/Tenant rights...I promise. 

3. Despair

It's the end of my first month of bar prep and I have taken 2 practice MBE exams and I've done at least 20 essays and I continue to fail! I don't know any of this stuff! Why did they even let me graduate? I wonder if the board of law examiners will give me my money back so I can just cut my losses. I'd rather be at the beach anyway.

4. Panic

What in the holy %@$?!!! It's July 1st/February 1st and I don't know a single thing. Everyone else claims to have completed most of their review course and I don't even know the difference between Article 2 and Article 9 of the UCC...What does UCC stand for?...Why do I need to know about merchant contracts?...What business owner doesn't get things in writing?!....I need a glass of wine after I lock myself in this office to study for the next month!

5. Acceptance

It's one week before the exam. I've neglected my job, my kids, and my spouse for the past 3 months and I've worked my @$$ off. There's honestly nothing more I can do. Looking at this 3ft. stack of test prep books...NOBODY could possibly know all of this crap but I'm going to do my best. Dear baby Jesus, Allah, Zeus, Prince Harry, Kanye (and whoever else is a god who answers prayers) just let me pass so I don't have to do this again!!

**Just know you're not the only one going through it and you'll make it!! Also know that part of the bar exam is preparation while another part is luck. You're lucky if the examiners happen to ask questions on the subjects you've reviewed. For bar prep, I recommend AmeriBar because they condense the information to testable areas and they don't just give you a stack of books with every single law and advise you to "read it...or else." No matter what course you choose, don't beat yourself for checking Facebook every so often just to stay awake ;)

**Try not to read too many blogs as it'll only scare you and GOOD LUCK!!!**

Should I get a divorce?

There are several reasons that people consider divorce and the final decision is never an easy one to make. There will be mediation conferences, hearings, exchanging of financial documents and continued stress until the process is over. However, if you are considering divorce in North Carolina, be sure to consider the legal and financial ramifications as well including: 

Child Custody and Child Support

1. If there were children born during the marriage the court will grant physical custody to one parent and the other will pay child support to him/her
2. The parent who is not awarded custody will likely see their children on weekends and alternating holidays
3. See my Custody and Child Support blogs for more info

 Separation of Marital Property and Debt

1. The courts will determine what property was purchased during the marriage and what debt was incurred during the marriage
2. The court will then divide this property and debt equally amongst each spouse (even if you did not incur the debt personally)
3. For more info check out my Marital Property Blog.

 Post-Separation Support and Alimony

1. In NC, the spouse who makes more money during the marriage is considered the supporting spouse 
2. The supporting spouse can be ordered to pay post-separation support to the "dependent spouse" allowing him/her to maintain the lifestyle he/she enjoyed during the marriage
3. Alimony is generally awarded after the divorce which is guaranteed to the dependent spouse if the supporting spouse cheated
4. See my Post Separation Support Blog for more info

 Claims against your Mistress/Paramour

1. Speaking of cheating, your spouse can collect from your mistress/boyfriend in claims for Alienation of Affections, Criminal Conversation, and Loss of Consortium 
2. See my Homewrecker Blog for more info

Unpaid Tax Bills

1. Some couples wait to get divorced after years of separation
2. However, during this separation period, the IRS still views you as married and you are both required to file taxes. 
3. If your spouse has failed to file taxes during this period and back taxes are owed, this could effect you both as it will likely be considered marital debt. Unlike other creditors, the IRS can also put a lien on your marital home even if just one of you has not paid taxes. 

For more detailed questions, contact me at (919)321-6569, Nastasia@KisalaWatkins.com, www.kisalawatkins.com.

What if my husband or wife is infertile?

In NC, there are a few events that allow you to annul a marriage and one of those is an infertile or impotent

spouse. If either spouse is physically impotent at the time of the marriage and/or cannot reproduce, the marriage can be annulled. Generally, the impotence must be medically diagnosed by a doctor and must have existed at the time of marriage. So, if after 20 years of marriage your spouse can no longer "move like they used to," you are not entitled to an annulment. 

What is an annulment?
An annulment is an order from the court stating that your marriage never existed. This is very different from a divorce which simply ends an existing marriage. An annulment does not give the rights to post-separation support, alimony, or a distribution of the property as does a divorce. A major misconception is that the length of the marriage warrants an annulment, however, in NC this is not a factor. However, a marriage that has been followed by the couple living together and the birth of a child cannot be annulled once one of the parties is deceased (unless the marriage is bigamous).

For more information on annulments and divorces in NC, contact me at (919)321-6569, Nastasia@kisalawatkins.com; www.kisalawatkins.com.

What happens if I miss or skip jury duty?

 

What's more exciting than getting a jury summons scheduled for the day of your family vacation?!! Answer: just about Anything else. 

In NC, a jury summons is an official court summons. If you fail to report to jury duty the court could hold you in contempt, order jail time, and/or impose a $50 fine for not responding to a jury summons.

If you have an emergency and cannot attend, you may ask a District Court judge to change your jury service date. You may also ask to be excused if you have a medical reason that prevents your service or if you have served as a juror within the past two years, or are otherwise ineligible to serve. If your jury summons does not tell you how to request a deferral, call the Clerk of Court’s Office in your county.

Remember: It is against the law for your employer to fire or demote you because you served jury duty. However, the law does not require that the employee be paid in full while you are serving.

For more detailed questions, contact me at (919)321-6569, Nastasia@kisalawatkins.com

***The information in this blogpost was taken from www.nccourts.org***

 Picture credit:  http://simpsons.wikia.com/wiki/File:Simpsons_Cast_Jury_on_Family_Guy.PNG

What if my ex doesn't pay child support or alimony?

In NC, if you have been granted a Court Order for child support or alimony then your ex or spouse is in violation of the order if he/she does not pay the amount at the time the order requires. 

To recoup your money, you must file a Motion for Order to Show Cause requiring your ex to explain why he/she did not pay the money as ordered. It is your burden to prove that your ex willfully refused to comply with the order so be sure to include specific instances of missed payments and dates. 

You must also submit an unsigned Order to Show Cause which the judge will sign should they find that your ex did in fact violate the order. Be prepared for a hearing where you must show proof of everything you claimed in your motion. Judges like physical proof so bring bank statements, e-mails, payment ledgers, and any other proof showing that the payments have not been made on time.

If the court finds that your ex did in fact willfully violate the order and refused to pay up, they will be found in Civil Contempt and will receive sanctions, fines, and/or jail time. Your deadbeat ex can also be required to re-pay your attorney's fees since you had to drag them to court to get your alimony or child support payments.

For more specific questions or legal advice about your case, contact me at (919) 321-6569, Nastasia@KisalaWatkins.com, www.kisalawatkins.com.

What if my ex refuses mediation?

In NC, mediation is a way to come to an agreement without the involvement of the courts. It is usually more favorable because each party's views can be included in the agreement without the judge making the final decision. If an action has already been filed, the outcome of mediation can become a court order enforceable by the courts and the police. 

For instance, if you all agree to a custody arrangement after one of you has filed for custody, it becomes a Custody Order. If someone does not follow the order, the other can file a "Motion to Show Cause" and if they win in court, the person who violated the order will face jail-time and/or a fine.

If your spouse, former spouse, or child's parent refuses to go to mediation or refuses to come to an agreement while in mediation, the courts must make the final decision in your case. If you are unfamiliar with the Rules of Civil Procedure or the Rules of Evidence, it is best to hire an attorney because you will be expected to know these rules during your hearing. It is also very difficult to get your point across to a judge if both sides are just accusing the other of being a bad parent/spouse. Hiring an attorney who is not emotionally invested in the case can speed along the process and help your voice be heard.

Our office has had great success with assisting clients who cannot agree in mediation and we have also settled most of our cases through some form of negotiations or mediation. As a N.C. Certified Mediator, I work with clients to assist them in getting the optimum outcome even when their spouse is disagreeable. 

If you have more questions, contact me at (919)321-6569, Nastasia@kisalawatkins.com, www.kisalawatkins.com.

What do I do if my ex contests the divorce or doesn't sign the papers?

Sorry to tell him or her, but the divorce is going to happen eventually. They are just prolonging the process. 

In NC, you can get divorced after being separated for 1 year (unless one of you is mentally incompetent). No papers have to be signed by your spouse and they do not have to consent to the divorce in NC. No one has to be at fault and you don't even have to have a reason for the divorce. So, the only real defense to divorce is that you were not actually separated for 1 year. If this is his/her defense, you can just wait the additional time required for the 1 year separation to be in effect and your divorce will still be granted!

Remember that you cannot rekindle the relationship or attempt to get back together during the 1 year separation, otherwise, the clock starts over. In NC, sleeping together once in awhile is not considered getting back together. So don't worry if you guys did something you now regret after that wedding reception with the open bar last summer.

You must file for alimony, post-separation support, and an equitable distribution of your property before or when you file for divorce otherwise the claims are lost forever. 

Contact me at (919)321-6569, Nastasia@KisalaWatkins.com, or at www.KisalaWatkins.com for assistance with your divorce questions.

What happens in court if you are a witness?

Don't panic! Being a witness may seem pretty simple to some, however, being up on the stand with the lights beaming down your face and attorneys throwing questions at you can be very scary. 

Here is the general process: 

1. You will be sworn in. You know how it goes, "Do you swear to tell the truth, the whole truth and nothing but the truth so help you God?"
2. The side who called you as a witness will question you first. Then the other side will ask you questions. The may take turns with the process again if need be.
3. Your attorney is there to help you. He/she will protect you from any questions that are not relevant to case or will hurt your chances of winning. When your attorney objects, wait for the judge to rule on the objection then answer the question ONLY if the objection was overruled. He/she can also refresh your memory with a document if need be.
4. Take a moment to process the question. There is no time limit to answering the question and you want to be truthful, otherwise, your entire testimony will appear to be untruthful.
5. TELL THE TRUTH! It's obvious when you lie on the stand and the judge will not take anything that you say seriously if you lie. It doesn't work...so don't try it. 
6. You will be nervous in the beginning, but after awhile, you'll get comfortable and before you know it...it's over! 
7. Address your answer to the judge or the jury. You are not trying to convince the parties or the attorneys that what you are saying is true, only the judge or jury.

If you've been subpoenaed to testify at an upcoming criminal or civil trial and are concerned about your rights, contact me at (919) 321-6569 or Nastasia@kisalawatkins.com.

***I do not own the rights to this video***

I've just been sued! What do I do?

Nothing can ruin your day like being greeted by the sheriff with a yellow sheet of paper that reads "Summons and Complaint." Although it is tempting, the worst thing that you could do is ignore it! If you ignore it, the person who sued you will automatically win in what is called a "Default Judgment." 

Generally, in NC, you have 30 days to respond to a lawsuit. This is your chance to deny the allegations in the lawsuit and submit a counterclaim against them if they have wronged you as well. You only get one shot to file a claim (or counterclaim) for anything arising out of the same set of facts, so be sure to meet with an attorney so you don't miss any claims and miss out on some money or property owed to you. 

Remember to be truthful because you could be ordered to pay a fine or their attorney's fees if you allege facts that aren't true. Separately, if the facts that they are claiming are untrue, baseless, and frivolous, the other side may be ordered to pay your attorney's fees following a Rule 60 "Motion for Sanctions." 

Many lawsuits can be settled through mediation or negotiation. This way, the parties can determine the terms of the agreement without leaving their fate up to a judge. Contact me, a certified mediator, if you need a neutral party to resolve these issues before they reach a hearing at (919)321-6569, Nastasia@kisalawatkins.com, www.kisalawatkins.com.

How do I file for divorce in NC?

It's important to remember that when you file for divorce, you must also file for the equitable distribution of the marital property, alimony, and post separation support at the same time or before you file for divorce otherwise you will lose all claims to them.

1. In NC, you do not have to state a reason for getting divorced, you must only be separated for 1 year (unless your spouse is incompetent or insane). 
2. After this one year separation you can file for divorce using the forms provided at most clerk's offices or by submitting a complaint. 
3. Your spouse is then served and he/she has 30 days to respond to and/or challenge your complaint for divorce. If your spouse is served and does not respond within the 30 day period, you may file for a Default Judgment which automatically grants your divorce because no one challenged it.

Filing all of the claims related to the marriage/divorce at once will also save you some money because there is just one filing fee! You can file for child support and child custody at anytime before, during or after the marriage depending on your living situation. However, there will be a separate filing fee if you do them each separately, so ask your attorney about filing them all at once.

If you have more detailed questions, feel free to contact me at (919)321-6569, Nastasia@kisalawatkins.com, Kisala Watkins Law Group, PLLC

I am not divorced yet, can my ex still help me pay some of the bills?

Yes. You may file a claim for Post-Separation Support which allows you to maintain the standard of living you enjoyed during the course of your marriage.

A claim for Post-Separation Support requires:

1. Dependent Spouse: a spouse who is dependent on the other and cannot maintain his/her accustomed standard of living because he/she does not make enough money to do so
2. Supporting Spouse: has the means and ability to support the dependent spouse

Showing that the supporting spouse has engaged in marital misconduct will help your claim for post-separation support. So, if your spouse has cheated, used drugs, or abused you during the marriage, you are more likely to be awarded post-separation support. Remember, however, that once you point the finger at your spouse, the judge must also look into any misconduct by you during the marriage.

Payments for post-separation support end when your divorce is final or when the judge rules on your alimony claim. So, be sure to file for alimony when you file for divorce to ensure that you don't lose the claim and that you can continue to pay your bills. 

For more information on how much you can expect to receive in post-separation support and how to begin the process, contact me at 
(919) 321-6569, Nastasia@kisalawatkins.com,  www.KisalaWatkins.com

What happens if I miss my court date?

If you recently missed your court date you may be able to fix it...if you act quickly. 

Criminal 
In NC, if you are a defendant in a case and miss a court date, you must request a new court date otherwise a warrant will be issued for your arrest for "Failure to Appear."  If you put up a bond to ensure your return for the court date, you will likely lose the bond. Each county has a different waiting period before the clerk will report your absence so check with your clerk's office at www.nccourts.org.

Civil
If you are the plaintiff in a civil case and you do not show up to present your case in court, it is likely that your case will be dismissed. You may not bring the case again using the same facts and issues under the legal principal of "res judicata" because a judgment has already been entered against you. 

If you are the defendant in a civil case and you do not show up, it is likely that you will lose the case and everything that the plaintiff has alleged will be deemed as true in a "default judgment" against you. Because you were not present to tell the court your side of the story, the court will assume that the plaintiff has told the truth and they win by "default." 

***

If you know before the court date, that you will be unable to attend, speak with an attorney so that they can request a "continuance" for a more convenient court date. If you have more questions, contact my office at (919)321-6569, Nastasia@kisalawatkins.com, Kisala Watkins Law Group, PLLC.

My ex is trying to take custody of my children! What can I do?

Don't panic! It is EXTREMELY difficult for a person to simply lose all custody rights to their child. NC courts do not favor a mother or a father in child custody suits and each parent has equal rights to the care, custody and control of their children. In order for youR ex to gain sole custody the court must find that you are "unfit" which is a long drawn out process with a high threshold to overcome.

There are 2 types of custody that the court will award solely to one person or jointly to the both of you: 

1. Physical Custody: physically caring for the child
2. Legal Custody: the ability to make decisions regarding the child's religion, education, and other decisions about the child's upbringing.

Remember that your ex must file for "custody modification" to change a current custody court order. The court will hear both sides and make a decision regarding the custody arrangements after determining what is in the child's "best interest." Even if you two agree to the change, the court must make a ruling so that it will be binding. Otherwise, if your ex no longer agrees with the change (or is just upset with you one day) you will be in violation of the original custody order and can be hauled into court on contempt charges. 

Child Custody is a very stressful process and parents are very emotional while also trying to navigate the legal system. It can be very helpful to use the assistance of an attorney to interpret the legal jargon and take the added stress of court hearings, motions, and orders off of your back. If you have more questions, contact me at (919)321-6568, Nastasia@kisalawatkins.com, Kisala Watkins Law Group, PLLC.

Can my ex stop paying child support in NC?

No, in NC, a child support order from the court is like a judgment. If the person who owes the child support fails to make timely monthly payments without the permission of the court, they will be found in contempt and can be jailed for non-compliance.

There are, however, a few ways in which a person can stop paying child support with the permission of the court:

1. If you agree to dismiss the child support case and forgive any past unpaid payments (arrears)
2. When the child turns 18, graduates high school, gets married, or joins the military, child support payments end. Then only the payments in arrears must be made. 
3. If there is a change in their circumstances that is so substantial that making child support payments is impossible. *This is very unlikely and the courts frown on those who become unemployed just to avoid financially supporting a child*
4. The statute of limitations to collect a judgment is 10 years, so if no payments have been made in the last 10 years and no attempt has been made to collect it through the courts, the child support payments may no longer be collected. 

Remember that this must be done through a series of motions and orders, not just an agreement between the parties. For more information, give me a call at (919)321-6569 or email me at Nastasia@kisalawatkins.com.

Kisala Watkins Law Group, PLLC

How much child support will I get (or have to pay) in NC?

The short answer is, "It depends."  

First, the court must determine who is the custodial parent, or the parent that has custody more often than the other. Then the court will consider how many other children and other obligations each parent has. The court will determine if the non-custodial parent (who has the child less often) pays health insurance, private school, daycare, or other necessities for the child. These contributions will knock off some of the money owed for child support.

After these factors are considered the court will look at each parents' income in correlation to the amount of time they keep the child. To do a rough check for how much you can expect to pay or get in child support, calculate how much you earn and how much the other parent earns. Then check the NC Child Support Guidelines to determine how much NC believes it costs to raise a child with this income. You may also access the NC Child Support Worksheets to calculate different scenarios for child support based on your income and other obligations.

For example, if you are the custodial parent (we'll call her Mom simply because this is what is seen a majority of cases) and earn $1,000 each month and the non-custodial parent (Dad) earns $2,000 each month, together you both earn $3,000.00 each month. NC has determined that based on an income of this amount, $523.00 should be contributed to the child each month. This amount will be split between the parents based on each parents share of the total amount they earn together. 

Here, Mom earns 1/3 of the total $3,000.00 and Dad earns 2/3 of the total. Because Mom is paid the child support based on this percentage, she will be paid 2/3 of the $523.00 it takes to raise the child. So, this Mom can expect a child support payment in the amount of $348.67.

If you have more questions about how and when to file for child support, give me a call at (919)321-6569. You may also email me at nastasia@kisalawatkins.com.

I have incurred credit card debt and student loan debt during my marriage. Does my spouse have to pay any of this if we get divorced?

Yes, more than likely your spouse will be responsible for at least some part of the debt. In NC, property is distributed by a process called Equitable Distribution. Fault is not considered and it is presumed that an equal distribution of the marital property is a fair distribution unless proven otherwise. In order to distribute the property, the court must:

1. Classify the property as Marital, Separate, or Divisible Property
2. Give the property a value
3. Distribute only the Marital and Divisible property to each spouse

How do I know the difference between Marital, Separate and Divisible Property?

Marital Property: property purchased or received during the marriage and before you all were separated. This includes debt, property, pensions and income received during the marriage.

Divisible Property: property received after separation but before the final divorce when either spouse

• acted to earn the property during the marriage 
• i.e. bonuses or commissions earned during the marriage but received after separation 
• changes in marital debt including finance charges and interest 
• appreciation and depreciation in the value of property 

Separate Property: property owned by either spouse before the marriage or received during the marriage by gift or inheritance. You get to keep this property and it is not distributed during a divorce.

Remember, your spouse may also have a right to the income that you've earned during the marriage as a result of your shiny new diploma that created this student loan debt. However, he/she has no right to the actual professional license itself. 

Check out my blog regarding NC's Source of Funds Rule if you have questions about the classification of your property after its sold. For specific questions, contact me at (919)321-6569, nastasia@kisalawatkins.com, Kisala Watkins Law Group, PLLC

My spouse cheated, how can I get a divorce and sue the "home-wrecker?"

Nothing will appease the anger and hurt that you feel as a result of your spouse's infidelity. No amount of money will help you get over the feelings of betrayal, however, the courts in NC may assist you in bringing a claim for money damages against your spouse AND their new flame.

Against the Spouse

You may have a claim for alimony and/or spousal support when you are filing for your divorce. While a NC divorce is awarded regardless of the fault of either party, a claim for alimony is fault-based. The court will determine whether or not your spouse cheated during the marriage, therefore causing the divorce, and will award you alimony payments based on each spouse's contributions to the marriage, length of marriage, and the severity of the infidelity. While you are awaiting an award of alimony, you may qualify for spousal support if your spouse supported you throughout the marriage. Your spouse may have several defenses and there are issues of timing when filing for alimony  so give me a call for more information at (919) 321-6569.

Against the Home-wrecker 

• Alienation of Affections Civil Claim 

NC is one of the few states that still observes the claim of Alienation of Affections. It punishes the "home-wrecker" for interfering with a marriage that was once happy and enjoyable. It does not require a sexual relationship as meddling mother-in-laws and neighbors may also be sued under this claim. However, the actions that broke up your marriage must have happened before you all separated. Once you have proven that their actions caused your marriage to break up, you could recover money damages from the "home-wrecker."

• Criminal Conversation Civil Claim

Criminal Conversation is a cut and dry claim for "You slept with my spouse, now pay up." It is a strict liability claim so it is no defense to respond "I didn't know he was married." Even if he/she didn't know they were sleeping with a married man/woman, they can still be found liable. The acts must have occurred before you all separated, and once found liable, the "home-wrecker" will have to pay money damages to you. There is a short statute of limitations period and you may also have a claim for additional punitive damages so contact me for more information at (919)321-6569, nastasia@kisalawatkins.com, Kisala Watkins Law Group, PLLC.

Do I have to get legally separated in NC before getting a divorce?

No, in NC there is no procedure for being "legally separated." The court will consider the date in which either party left the marital home with the intent to end the marriage. You must, however, be separated for at least 1 year before you can be divorced in N.C. (unless the person is mentally impaired, then there are additional requirements).

You can, however, petition the court for a "Divorce from Bed and Board" which is essentially a legal separation. While not required, this may protect you from a future claim for alimony if your spouse can show that you abandoned him/her. In N.C. alimony is fault-based, so if you can prove that your spouse was at fault for the divorce, you may be awarded alimony as a "penalty" for these actions. However, the court will generally assign fault to one party and consider the other party as having no fault affecting future alimony claims, so this a risky option. 

In my opinion, a better option is a separation agreement because both parties have a voice without a judge deciding their financial future. Separation Agreements can include spousal support, alimony, property distribution, custody and child support. While a judge makes the final decision during a divorce proceeding, this agreement can guide a judge about what is best for the spouses and the children. The agreement also keeps attorney's fees down because spouses aren't fighting over money and property as it is all written down, reducing the number of hearings.

We do flat fee uncontested divorces and separation agreements! If you have more questions or need assistance with a divorce or child custody, give me a call at (919)321-6569. Check out our website at Kisala Watkins Law Group, PLLC.

Can my child’s mother stop me from seeing our child because I do not pay child support?

No. Every parent has a right to the care, custody, and control of their children unless they act inconsistently with this right. If a parent abandons, abuses, or neglects their child, they may lose this right and be restricted to only visiting their child with supervision or not at all (however this is only in extreme circumstances). N.C. does not favor a mother or a father in custody cases. Each parent has an equal right to custody of their child.

Child support and child custody are not related. If you were ordered to make child support payments and are not able to see your child due to non-payment, you can file a lawsuit for custody. The court will only determine what is in the child's "best interest" and will not consider your payment history of child support.

If you are in need of assistance with filing a claim for custody, contact my office at: Kisala Watkins Law Group, PLLC, (919)321-6569, nastasia@kisalawatkins.com

My husband and I just sold our car and he used the money to buy a camper. Is this camper considered HIS property if we get divorced?

The short answer is No. 

North Carolina follows the "Source of Funds Rule" which allows the court to trace back the money used to purchase the property to determine who owns it. The court will then trace back the money used to buy the camper and determine that "marital funds" from the sale of the car were used. Because marital funds were used to purchase this property, it becomes marital property and you both have ownership rights to it should you get divorced. 

If you have more questions, please contact us at Kisala Watkins Law Group, PLLC.(919)321-6569