Because the marital estate ‘freezes’ on the date of separation, see Becker v. Becker, 88 NC App 606 (1988), an increase or decrease in the value of marital property occurring after the date of separation, or income received from marital property after the date of separation, is not included in the marital estate. The category of divisible property was created to allow a court to distribute these postseparation assets along with the marital property. If the change in value or the income is classified as divisible, it can be distributed. If it is not divisible property, the court can do nothing more than consider the income or change in value as a distribution factor.
-
-
Attorney Fee Provisions in Business Contracts – New Legislation Loosening the “Sign by Hand” Requirement
First, Some Attorney Fee Basics. North Carolina generally follows the “American Rule” in requiring parties to civil litigation to be responsible for their own attorney fees: “It is well-established that the non-allowance of counsel fees has prevailed as the policy of this state at least since 1879.” Stillwell Enters, Inc. v. Interstate Equip. Co., 300 N.C. 286, 289 (1980). Attorney fee awards are allowed only when specifically authorized by statute. In general, fee-shifting is not allowed even when a party has agreed in a contract to reimburse another party’s attorney fees incurred in enforcing the agreement. Id. Two key statutory exceptions apply, however, to this rule against enforcement of attorney fee agreements. First, and most familiar, is G.S. 6-21.2, which allows enforcement of attorney fee-shifting provisions in notes, conditional sale contracts, and “other evidence of indebtedness.” I discuss the ins and outs of G.S. 6-21.2—enacted in 1967 and the subject of lots of case law—here.
Continue Reading -
Consenting to Medical Treatment for a Child Placed in the Custody of County Department, Part II: Non-routine and Non-emergency Medical Care
Part I introduced the new G.S. 7B-505.1 and 7B-903.1(e) and discussed the county department’s statutory authority to consent to a child’s
- routine medical and dental care;
- emergency medical, surgical, or mental health care;
- testing and evaluation in exigent circumstances, and
- a Child Medical Evaluation (CME).
What about Medical Care that Is neither Routine nor an Emergency? Continue Reading
-
Consenting to Medical Treatment for a Child Placed in the Custody of County Department Part I: Routine and Emergency Care and Evaluations in Exigent Circumstances
Through S.L. 2015-136, “An Act to Make Various Changes to the Juvenile Laws Pertaining to Abuse, Neglect, and Dependency,” the General Assembly enacted G.S. 7B-505.1 and G.S. 7B-903.1(e).These two new statutes address medical decision-making authority for a child who is placed in a county department’s custody through an order entered in an abuse, neglect, and dependency action. These new laws apply to all abuse, neglect, and dependency actions that were pending on or filed after October 1, 2015. Continue Reading
-
Kids Need Both Parents When Possible
The General Assembly has made a statement regarding the allocation of parenting rights and responsibilities in child custody proceedings. Without changing the law that custody orders should promote the best interests of the child, legislators enacted a statement of public policy designed to “promote the encouragement of parenting time with children by both parents.”
-
More Thoughts on Improper Delegation of Authority and Intermittent Confinement
Over the past four months, I’ve had the opportunity to discuss the new juvenile delinquency legislation, S.L. 2015-58, with juvenile court officials from every part of the system – prosecutors, defenders, judges, and most recently, juvenile court counselors. While each group had distinct questions and concerns, one particular issue universally generated the most discussion. That issue was intermittent confinement (short periods of confinement in juvenile detention) or “IC days” and how the amendments to G.S. 7B-2506(12) and (20) change the way it is “imposed.” The amended statutes mandate that only judges may determine the imposition of IC days, whereas previously, judges were only required to determine the timing of the confinement. In a recent post, I explained that this change was designed to prevent judges from improperly delegating their authority to court counselors by suspending IC days and ordering court counselors to impose them immediately upon the juvenile’s noncompliance with certain conditions. This practice will soon be prohibited (as of December 1, 2015), since the new law clarifies that only the court may impose the confinement. However, the lack of specific guidelines has left judges and court counselors wondering what they must do to comply with the statute. Here are some additional thoughts about how I think this legislation will impact the court.
Continue Reading -
New Lifetime Civil No-Contact Order
We have Chapter 50B authorizing civil domestic violence protective orders to protect victims of domestic violence and Chapter 50C authorizing civil no-contact orders to protect victims of sexual misconduct and stalking who do not have the personal relationship with the perpetrator required for a 50B DVPO. Effective October 1, 2015, we now also have Chapter 50D authorizing permanent, non-expiring civil no-contact orders to provide additional protection to victims of sexual violence.
-
Small Claims Procedure for Magistrates: Judgments, Orders, and the Difference between Them
When a magistrate has heard evidence in a case and makes a decision based on that evidence, the formal document reflecting that decision is a judgment of the court. Form judgments for each kind of small claims case are provided by the AOC (designated as CVM forms), and they provide a valuable guide to the finding and conclusions required for a proper judgment. While the AOC forms are convenient, the law does not require their use, and some counties routinely utilize different forms. The AOC forms do reflect thoughtful decisions about what should be included in a judgment, however, and a small claims magistrate is advised to investigate further before deciding to routinely deviate from or ignore some portion of the judgment form.
-
Children in Foster Care, “Normal Childhood Activities,” and the “Reasonable and Prudent Parent” Standard
On October 1, 2015, several new statutes affecting abuse, neglect, and dependency cases went into effect. Three new statutes specifically address decision-making standards related to social and cultural activities for children who are placed in a county department’s custody because of abuse, neglect, or dependency. The new statutes were created by S.L. 2015-135 and are
- G.S. 131D-10.2A: Reasonable and Prudent Parent Standard,
- G.S. 7B-903.1: Juvenile Placed in Custody of Department of Social Services, and
- G.S. 48A-4: Certain Minors Competent to Contract.
-
It’s Only Juvenile Court, Is an Expunction Necessary?
In discussing my experience as a juvenile defender with non-lawyers, I have learned that many people believe that juvenile proceedings are completely confidential and under no circumstances can anyone learn about the case or access the records. They also think juvenile matters are not very significant and have no real consequences beyond the juvenile court process.