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For a reason never articulated by our appellate courts, debts incurred during a marriage are treated very differently in equitable distribution than is property. While public policy – codified as the marital property presumption found in GS 50-20(b) – is to include all property acquired during the marriage in the marital estate unless it is shown to fit within one of the limited categories of separate property, debt incurred during the marriage is excluded from the marital estate unless a party can prove the debt was incurred for the joint benefit of the parties.

READ POST "Equitable Distribution: Classification of Marital Debt (June 19, 2015)"

Years ago when my son was in the first grade, he took a 3 inch plastic toy knife to school. I received an alarming phone call from the principal.  She explained that he took the knife out of his book bag to show it to his classmates.  He did not make any threatening statements or attempt to use it in a threatening manner.  The principal said that even though the school had a zero tolerance policy, there would be no disciplinary action taken because of my son’s age. She also considered that he had no prior incidents or behavior issues and did not have any violent intentions when he showed his classmates the knife. Today, my son would likely have a different experience.

READ POST "Juvenile Defenders: Part of the Solution (June 17, 2015)"

Custody orders can be modified only when there has been a substantial change in circumstances affecting the welfare of the child. So what can be done when there is a change that is not actually substantial or that has little or no impact on the welfare of the child but which makes the existing parenting plan inconvenient or more expensive for the parents? For example, the work schedule of one parent changes in a way that makes the existing plan very inconvenient or significantly increases that parent’s childcare costs? Or, a child starts playing a new sport where the games are scheduled during the time child is supposed to visit the parent living in another state? Is there any room in the law for allowing minor “tweaks” to custody orders to accommodate normal life changes?

READ POST "“Tweaking” of Custody Orders Not Allowed (June 12, 2015)"

UPDATE: On February, 7, 2017, in an unpublished decision, In re Foreclosure of Iannucci, the NC Court of Appeals upheld the trial court’s reliance on a lost note affidavit as […]

G.S. 50-13.5 allows a court to enter a temporary custody order whenever the court deems it appropriate. The ability to enter a temporary order gives the court the power to address immediate needs of families going through the litigation process. There is no limit on the number of temporary orders that can be entered in a case and temporary orders can be changed at any time, by any judge, for any reason.

One of the most important factors affecting a juvenile court disposition is the juvenile’s delinquency history level, which in turn depends primarily on the juvenile’s prior delinquency adjudications. The delinquency […]

GS 50-8 requires verification for a complaint requesting a divorce. What can be done if the divorce complaint is filed without a verification or if the verification is faulty in some way? Must the complaint be dismissed and a new action instituted – requiring another payment of the substantial filing fee?

READ POST "Can a verification problem be corrected after a divorce complaint is filed? (May 29, 2015)"

Every so often I get telephone calls from attorneys, fresh from a rare appearance in small claims court, calling to offer some helpful observations about the need for more and better training of small claims magistrates. I suspect that chief district court judges and clerks of superior court receive similar calls. While magistrates, like the rest of us, sometimes make mistakes, I’ve learned that it is often the attorney, rather than the magistrate, who is in error, for reasons that are entirely understandable. After all, attorneys share that fundamental rite of passage of having suffered through two agonizing (at least for some of us) semesters of law school mastering various aspects of the Rules of Civil Procedure. And Rule #1 (literally) assures us that “These rules shall govern the procedure in superior and district courts of the State of North Carolina in all actions and proceedings of a civil nature except when a differing procedure is prescribed by statute.” GS 1A-1, Rule 1. So what’s up with small claims?

Is a consent custody order void if it is entered in a case between a nonparent and a parent and the consent order does not include the conclusion that the parent has waived his or her constitutional right to exclusive, care, custody and control of the child?

READ POST "Nonparent vs Parent Consent Custody Orders (May 22, 2015)"

*This post was amended on January 29, 2016 to add Rule 45 (subpoena) and on February 22, 2017 to specifically reference Rule 12(b)(3)

Have you ever felt like you’re playing a game of one potato, two potato when figuring out if a Rule of Civil Procedure applies to your abuse, neglect, dependency, or termination of parental rights action? Let me provide you with a guide instead.