What in the World Happens Next? How Family Law Attorneys Should Plan Now for Alimony and Child Support Case Modifications

By Tonya Graser Smith

The economic side effects of the coronavirus pandemic on divorced or soon-to-be-separated clients can’t be ignored. As family law attorneys, we know the flood is coming.

We see the tidal wave. We see the stress of family and work, the emotional imbalance, the inability to make decisions, the very quick accusations that one side or the other is acting crazy. We see our clients crumbling into tears with non-case related issues like trying to get their Instacart or Shipt groceries delivered on time and making sure their kids get on their Zoom classroom meetings.

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Chief Justice Beasley’s COVID-19 Task Force and the Practice of Family Law

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By Wade Harrison

These are tough times. We have been forced to deal with the uncertainty and disruption surrounding this public health threat. Some of us have lost a loved one without the opportunity to communicate with them or publicly celebrate their lives. We deal with our clients’ stress and the financial stress this has caused. The Chief Justice issued emergency orders necessary to protect our health and safety and that of our clients and court personnel. Our practices have slowed to a crawl, and we are nostalgic about interminable calendar calls because of a bat bite in China. What is next?

Chief Justice Beasley appointed a Task Force to recommend how and when she should ramp up operations in the North Carolina Judicial Branch during this pandemic. She appointed me to represent the family lawyers. Prior to accepting this job, I secured a pledge for assistance from the leadership of the Family Law Section and the North Carolina Chapter of the AAML. I need your help to represent you effectively. Here is how I am representing you and how the Task Force operates.

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Family Law’s First Virtual Empower Hour

Larissa Mañón Mervin

Jeanine Soufan

By Larissa Mañón Mervin and Jeanine Soufan

On Friday, May 1, 2020, the Family Law Section participated in the North Carolina Bar Foundation’s first-ever “Virtual” Empower Hour. After our Virtual Section Meeting, members stayed on our Zoom call to login to NC Free Legal Answers and to help clear the Family Law question queue together. NC Free Legal Answers is a 100% virtual pro bono service where income-eligible North Carolina residents can ask civil legal questions for free. According to NCBF Pro Bono Staff Attorney, Jeanine Soufan, the most popular legal questions on the site are Family, Housing, and Consumer Law.

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Case Law Update: DVPO

By Rebecca K. Watts 

Quackenbush v. Groat, COA19-415, decided May 5, 2020 (DVPO)

Plaintiff filed a complaint for domestic violence protective order, to which she attached 12 pages of detailed allegations against Defendant. At the hearing, Defendant moved to dismiss the complaint for failure to state a claim. Defendant argued that the Court of Appeals decision in Martin v. Martin dictated a certain level of specificity in the pleadings, and that the pleading here failed because the attached pages were not referenced in the form complaint. Defendant did not argue that he did not receive the attachment pages or that he was unable to respond to the allegations (he had, in fact, filed an answer in which he responded to the allegations)—he simply argued that because the form complaint itself did not include language such as “see attached,” there was no way to tell whether the attachments were indeed part of the verified pleading. The trial court determined that based upon the Martin decision, plaintiff’s complaint should be dismissed because plaintiff’s allegations were not sufficiently specific to afford defendant due process. Plaintiff appealed.

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Case Law Update: Custody Modification

By Rebecca K. Watts

Padilla v. Whitley de Padilla, COA19-478, decided May 5, 2020 (Custody Modification)

The parties’ original custody order was entered in 2016 and granted custody to Mother. Father had limited visitation because at the time that order was entered, Father had ongoing mental health issues, an unhealthy relationship with his girlfriend, and an unstable living situation. In 2018, the trial court entered an amended custody order which kept physical custody with Mother, but which gave Father more visitation time. Mother appealed.

On appeal, Mother argued Father failed to meet his burden of showing a substantial change in circumstances because there had been no adverse change in her care of the children. The Court of Appeals affirmed the trial court’s order.  In reaching its decision, the Court of Appeals noted that the trial court’s 2018 order included findings of many positive changes regarding Father and that a modification may be based upon positive findings of changed circumstances.

Case Law Update: Equitable Distribution

By Rebecca K. Watts

Best v. Staton, COA19-638, May 5, 2020

Prior to the parties’ separation, Wife filed a complaint for divorce from bed and board and equitable distribution. Husband filed an answer to the complaint and a notice of “intent to file for equitable distribution.” In his prayer for relief, Husband asked that he “be allowed to file for equitable distribution upon separation of the parties.” The parties then separated, and after separation, Husband filed what he captioned as an “amended counterclaim for equitable distribution” and asserted his equitable distribution claim. Wife then filed a motion asking that the trial court dismiss both parties’ equitable distribution claims. Husband filed a motion seeking dismissal of Wife’s equitable distribution claim. The trial court dismissed Wife’s claim, finding that Wife’s claim was asserted prior to the date of separation. The trial court did not dismiss Husband’s equitable distribution claim. In denying dismissal of Husband’s equitable distribution claim, the court found that Husband’s notice of intent to file for equitable distribution was not a counterclaim for equitable distribution and so the “amended counterclaim” for equitable distribution was not actually an amended claim (that would have related back to the date of the filing of the claim being amended), but was an initial claim, asserted after the date of separation. The trial court conducted an equitable distribution trial and entered its order, which Wife appealed.

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A New Chief Justice Beasley Order, Session Law 2020-3, and the Court Wants Your Help!

PJ Puryear

Kellie Myers

By PJ Puryear and Kellie Myers

Good morning, everyone! There are three important new developments that we want to ensure you know.

1. Chief Justice Beasley’s Newest Order
As most of you know by now, last Friday Chief Justice Beasley issued a new Order regarding the administration of justice during COVID-19. Every part of that Order is incredibly important, extending the Chief Justice’s prior directives out to June 1, clarifying the procedure regarding remote hearings, and much more. We recommend every attorney and paralegal read this Order in full. Click here to read it.

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ICPC Procedures during the COVID-19 Crisis – Interstate Adoption

By Brinton Wright and Michele Smith

If you’re involved in an interstate adoption and need to comply with the Interstate Compact on the Placement of Children (ICPC), you should know how the COVID-19 crisis affected the procedure for submitting a request for approval of a placement to North Carolina ICPC.

North Carolina’s ICPC Administrative Assistant and ICPC Specialists are all working remotely while Governor Cooper’s Stay at Home Order remains in effect.  Accordingly, for now at least, do not send the ICPC request to the ICPC Office in Raleigh. There’s no one there!
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Military Pension Division: Claims for Relief That Cannot Be Granted

By Mark Sullivan

Every once in a while, a claim to divide military retirement benefits is met with a motion to dismiss.

Sometimes such a defense is well-taken, and sometimes it’s a stalling tactic or it’s based on a misapprehension of the law.

Here’s a short summary of jurisdiction and the division of the military pension.

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Government Stimulus for the Family Lawyer – CARES ACT – Paycheck Protection Program (PPP)

By Jeremy Browner 

The COVID-19 Pandemic has changed the ability of the family law attorney to generate revenue. Stay at Home Orders and court closures have severely reduced the ability to help our clients navigate through their personal choices and North Carolina family law. In addition, our clients may be going through employment issues and have suffered a loss of income as well.

There are a number of federal legislative changes and executive orders from North Carolina Governor that may help. However, in this blog entry, I will discuss the Paycheck Protection Program.

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