One of the first steps in any case is to gather information about assets, debts, the marriage, the children, and other matters which are important to you. In addition, Wake County and other counties have Family Court and the Local Domestic Rules are complex and often times confusing. Bender Law Offices provides each new client with a notebook specifically outlining the documentation needed to proceed with the matter. The paralegal will meet with you immediately upon retaining the firm to review the documents needed to proceed with your matter. The task of obtaining the information required to prepare a separation agreement and/or filing a lawsuit can be extremely overwhelming. Having a paralegal available to work with you throughout the process will help make it as painless and convenient as it can be. After forms are gathered, certain forms need to be prepared. The paralegal is available to assist you in preparing the various forms such as your financial affidavit and equitable distribution inventory.

The paralegal works closely with your attorney to ensure that things are filed in a timely manner, to schedule any meetings, mediations, depositions and court hearings in accordance with the Local Rules. She will work with the opposing counsel and the Family Court Office to try to ensure your matter is placed on the court calendar as expeditiously as possible.

One of goals at Bender Law Offices is to help you get through this change in your life as efficiently as possible. To do this, the paralegal will often prepare draft pleadings and discovery for your attorney, copy and organize your documents and meet with you to discuss any questions or concerns you have. She may assist your attorney in preparing for hearings and/or trials. This includes interviewing any potential witnesses you have, preparing exhibits, and ensuring your file is well organized.

Once your matter is finished, the paralegal is responsible for returning any original documents to you and closing your file. Although your attorney withdraws from your matter, this is merely a formality and we are here to serve you should the need arise

The Family Lawyer: Attorney and Counselor at Law

When my daughter was younger, she asked me what I did for a living. I took a step back and thought about how to explain what a family lawyer does to a three year old. I did not work on computers like her dad or build houses like her grandfather. Finally, after some thought I told her that I help people solve their problems.

When she got older, my daughter asked me what kinds of problems I help solve. That was a little harder. Again, a six year old's understanding of the world does not include the nuances of a couple's separation. So, I did my best to explain that I help people make decisions about where their children will live and who will keep what furniture and how they will live separate lives.

By this point in time, my son had come along and wanted to know exactly what I did to solve problems. Did I talk to the judge? Did I talk on the phone? Did I write letters? Did I read books? Did I meet with people in my office?

The answer of course was yes, to all those things and more. Family lawyers play a unique role in the lives of their clients. They are part advisor, part investigator, part strategist, part counselor and part listener.

When a client first comes to see a family lawyer, he or she is usually seeking general advice about the process of separating from his or her spouse. The attorney can and should explain basic law and how it can apply to the specific client in a very general way. Once the client makes the decision to separate, the lawyer's role changes to fit the needs of the situation. A good attorney will look at the client as an individual with a situation that is specific to that person. While some firms may be known for their "one size fits all" agenda or the "We'll fight them until they are down and then kick even harder" attitude, a good attorney will listen to the client and tailor their representation to that person's needs.

At that point, the lawyer needs to know as much as possible about the marriage, both emotionally and financially. The lawyer needs the documents of the marriage--the bank statements, the tax returns, the retirement account statements--to help understand what the couple has to divide. A lawyer can spend several hours reviewing these documents. The work can be painstaking, but it is needed to understand what has been happening financially to the couple over the past few years. It is not enough to know the balance of the account on the date the couple separated. Sudden withdrawals just prior to the separation may impact the property picture greatly. Credit card statements can provide a wealth of information about spending habits, and about other not so obvious issues, like why flowers are being purchased by husband, but not received by wife. The point is, reviewing documents is a large part of any lawyer's job, including the family lawyer, and takes time.

After the lawyer reviews the documents, she has to take the information gleaned and apply the law and determine the possible scenarios that might arise given the couple's financial picture and the desires of the client. For instance, a client might desperately want to keep the marital home, but not have enough liquid assets to compensate the other spouse for his share of the equity in the property. Here, the lawyer needs to analyze and strategize solutions to this very real problem.

Part of the attorney's job is to counsel the client, not like a psychologist or marriage counselor, but like a person giving advice on how to move through the divorce process. A good attorney will allow the client to decide what is important and lead the client through different possible resolutions to the situation. Until the attorney has all the facts, she or he cannot know what resolution would be best for a client. Until the client has all the facts, she or he cannot make a reasoned decision. Making a decision is always the client's choice, but making it from a position of knowledge is always best. It is up to the attorney to make sure the client know and understands the law and the different options available.

Happily, most people love their children. Unhappily, when in a divorce situation, not everyone acts in the best way possible. When children are involved, the lawyer is placed in the position of trying to advance the client's interest, knowing that the interest may or may not coincide with what is best for the children. Your lawyer should help you understand the law and how it applies to your situation. There are so many different things that go into custody and visitation. Your lawyer needs to talk to you and possibly to people who know your children and their needs. Here it is important for the attorney to learn what has been going on in the family for the past few years, who has taken on what roles and what is good or bad about different parents and parenting styles. Much of the time family lawyers spend on the telephone with their clients, deals with how to handle changes to a set custody schedule. Some times the changes are deliberately created by a parent to interfere with the other parent's time with the children. Sometimes circumstances, like an ice storm, or an illness wreak havoc with the planned upon meeting. These problems are not solved by one phone call. They often entail numerous calls between the attorney, her client and the opposing attorney. In extreme cases, a lawyer may have to draft a motion to take to a judge and request intervention.

Coming up with solutions can be harder than taking a case to trial. At a trial, a lawyer presents the evidence and asks the Court to provide an answer. The work necessary to prepare a case for trial far outweighs the actual trial itself. There is an oft quoted adage that a lawyer should never ask a witness a question to which he/she does not know the answer. Thus, when preparing for a trial, the lawyer needs to study all of the information available to prevent the possibility of a surprise.

Sometimes, a seemingly new problem presents itself, causing the lawyer, both experienced and novice, to go back to the books and review the cases on the issue. The law is an ever evolving concept, and a good lawyer must spend part of his or her time reviewing and analyzing the court's opinions on any given variety of issues. Today, the idea of family, parenting, and marriage itself have new and challenging dimensions.

Finally, much of what a lawyer does is to simply communicate--both talking and listening. The lawyer needs to communicate with his/her client, with potential witnesses, with experts, with the opposing side, and with the court in order to help solve the problems presented. At Bender Law Offices, we believe that it is important for you to understand your choices and the law and to make decisions that are right for you.

Legal Terms Commonly Used in Family Law Cases

In working with your Family Law attorney, it is important that you become familiar with the legal terms that may be used in your case. Below is a listing of commonly used legal terms that your attorney may use. This is not intended to be a substitute for the advice of your attorney. Each case is unique and an experienced attorney will be able to explain these terms in more detail and help you understand them within the individual facts of your particular case.

Absolute Divorce - An order signed by the Judge allowing the bonds of matrimony to be broken. Once an order is entered allowing an absolute divorce, neither party may file claims for equitable distribution or alimony. Any valid claims for equitable distribution or alimony that are made prior to the entry of the order for absolute divorce remain viable.

Accustomed standard of living - The standard of living enjoyed by the parties during their marriage. Often used in alimony trials to determine an appropriate amount of alimony.

Alienation of Affections - A legal action brought by one spouse against a third-party, for the third-party’s interference with the other spouse resulting in a deterioration of the parties’ marriage.

Alimony - Monetary support provided to a spouse who either has been substantially reliant upon the other spouse financially, or who will be substantially reliant upon the other spouse as a result of the separation.

Annulment - A legal action brought to end the marriage. Only certain types of marriages may be annulled such as: a marriage between two persons nearer of kin than first cousins, a marriage between double first cousins, a marriage in which one of the parties is under 16 years of age, a marriage in which one of the parties is already married to someone else (bigamy), a marriage in which one of the parties is physically impotent, and a marriage in which one or both parties lacked the will or understanding to contract (incompetent).

Arbitration - In an arbitration, the parties select a knowledgeable third party to act as a private judge in their dispute. The arbitrator hears witnesses, reviews evidence, and acts as the final decision maker about the issues. The parties are responsible for the arbitrator’s fees and are bound by the arbitrator’s decision.

Bad faith - Intentional action taken by a spouse in order to avoid an obligation. Frequently mentioned in child support and alimony cases where one spouse is thought to be intentionally decreasing his or her income.

Best interest of the minor child(ren) - In determining an original custody action, the trial court is to determine what custody arrangement is in the best interest of the minor child(ren) – what arrangement would be the most stable, loving, and nurturing home, and what would provide the best opportunities for the child(ren). Often this involves a custody arrangement where both parents spend time with the minor child(ren).

Calendar request - A court required form that is used to request a particular date for a court hearing.

Child custody - A determination of how the parents will divide their parenting responsibilities. Legal custody refers to how the major decisions affecting the child(ren) such as choice of religion, schooling, and major health issues will be made. Physical custody refers to where the child(ren) will live. Physical custody is frequently divided with one parent having primary custody and the other parent having visitation or with the parents having equal time with the child(ren).

Joint Custody: Joint legal custody allows requires the parents to make joint decisions regarding the major issues affecting the child(ren). If the parents cannot agree, many will defer to the opinion of a professional in the area of concern such as a doctor for medical issues, a therapist for issues involving mental health or welfare of the child(ren), or member of the clergy for religious issues. A joint physical custody arrangement is where each parent has custodial time with the child(ren) during the year, but one parent may have less than 123 overnights with the child(ren).

Shared Custody: A form of joint physical custody wherein each parent has at least 123 overnights with the child(ren) and assumes financial responsibility for the child(ren) when the child(ren) is/are with that parent.

Child support - Both parents are required to provide financial support for the minor child(ren). Child support is determined using the North Carolina Child Support Guidelines. The guidelines use a formula to compute the amount of child support owed and takes into account the income of each parent, the physical custody arrangement, the health insurance and child care costs incurred by each parent and any extraordinary costs incurred.

Criminal Conversation - A legal action brought by one spouse against a third-party, because the third-party had sexual intercourse with the other spouse during the spouses’ marriage.

Common law marriage - In a few states, if two heterosexual persons live together for a significant period of time and hold themselves out as a married couple, the state will recognize them as a married couple. North Carolina does not allow common law marriage, but will recognize a valid common law marriage from another state that allows common law marriage.

Community property - In some states using a community property approach, income earned and property and debts acquired during the marriage are divided in half so that each party receives a 50/50 division. North Carolina is an equitable distribution state, which means that the marital property and debts are to be divided equitably between the parties. Typically this means a 50/50 division; however, the court may determine that an unequal division in favor of one spouse is more equitable.

Consent order -  An order entered into voluntarily and with the consent of both parties. The order is then signed by the judge and is enforceable as an order of the court and is subject to the contempt powers of the court if a party fails to comply with the order.

Deposition - A discovery tool used by attorneys to gather information about the facts of a case by asking questions of the person being deposed and obtaining his or her sworn testimony. A court reporter records the questions asked and the answers given so that a verbatim written transcript of the deposition may be prepared. Depositions may also be videotaped.

Discovery - Statutorily allowed methods of obtaining information about a case, typically from the opposing party. Such methods include depositions, interrogatories, requests for admissions, and requests for production of documents.

Dissolution of marriage - A term used by several states instead of using the term “divorce”. This term does not apply in North Carolina as North Carolina allows a spouse to file a claim for divorce.

Divorce - See Absolute Divorce.

Divorce from bed and board - An action brought to obtain a judicial separation. The party bringing the action must show some injury done to them by their spouse such as indignities rendered so as to make his or her condition intolerable and life burdensome, abuse of alcohol or drugs, adultery, and abandonment. ***An action for divorce from bed and board does not have to be brought in order for the parties to separate. See separation explanation.

Domestic violence - An act by one party to a relationship against the other party involving either an attempt to cause bodily injury, actually causing bodily injury, placing an aggrieved party or member of their household in fear of imminent serious bodily injury or continued harassment that rises to such a level as to inflict substantial emotional distress, or committing a sexual offense against the other party, such as rape.

Domestic violence protective order - Also referred to as a “DVPO”. An order entered by the court prohibiting a party from having any direct or indirect contact with the aggrieved party. Indirect contact includes having third parties contact the aggrieved party on behalf of the prohibited party. Ex-parte DVPO is generally in effect for 10 days and then a review hearing is held. A DVPO entered following a review hearing is generally in effect for one year.

Equitable distribution - Also referred to as “ED”. Equitable distribution is the process used to divide the marital estate (assets and debts). Anything earned or acquired during the marriage – other than an inheritance or a gift from a third party – prior to the date of separation is included as an asset to be divided. Any debts incurred for the joint benefit of the parties during the marriage and prior to the date of separation is included as a debt to be divided. The assets and debts are typically divided so that each party receives 50%. If an equal division would not be equitable, the court has the power to divide the marital estate in unequal portions.

Equitable distribution inventory - A court required form used in equitable distribution cases that provides a list of the assets and debts of the parties. Each party is required to complete this form and to provide supporting documents.

Equitable distribution affidavit - A court required form used in equitable distribution cases that provides a more detailed list of the assets and debts of the parties, the values of the assets and amount owed on debts, and the contentions of the parties as to how the court should divide the marital estate.

Ex-parte - Means by or for one side. An ex-parte order is an order procured by one party without the other party having an opportunity to state their case. There are very limited circumstances in which an ex-parte order will be granted. Ex-parte communication refers to one party having communication with the judge about issues in a case without the other party being present. Ex-parte communication regarding substantive issues in a case is prohibited.

Initial pre-trial conference - In equitable distribution cases, the attorneys meet with the judge to determine deadlines for discovery, and to make sure the case is proceeding in a timely manner.

Interrogatories - A discovery tool used by attorneys to gather information about the facts of a case by asking written questions of the opposing party. The opposing party is required to answer the interrogatories to the best of his or her ability within thirty days of receiving the interrogatories.

Final pre-trial conference - In equitable distribution cases, the attorneys meet with the judge to determine what issues remain that will be tried at the hearing.

Marital misconduct - Marital misconduct is used to describe various indignities by one spouse to another spouse or to the marriage. Marital misconduct includes: illicit sexual behavior such as acts of sexual intercourse, deviant sexual intercourse, or other sexual acts voluntarily engaged in by one spouse with a third party who is not his or her spouse; abandonment by a spouse; maliciously removing one spouse from the residence; cruel or barbarous treatment endangering the life of a spouse; reckless spending of income or waste, destruction, or conversion of property; excessive use of alcohol or drugs; willful failure to provided sustenance and support for a spouse.

Mediation - A mediator is a neutral third party who assists the spouses and their attorneys in reaching a resolution that is acceptable to everyone. In Family Court, the spouses are required to attend custody mediation and equitable distribution mediation. Attorneys are not allowed at custody mediation, which is free to the spouses. Attorneys are allowed to be present at equitable distribution in which the costs of the mediator are typically split equally between the spouses.

Motion for contempt/ Motion to Show Cause - If a party willfully violates a court order and has the means to comply with the court order, that party may be subject to a motion for contempt. A motion and order for contempt requires the offending party to appear and show cause why he or she should not be held in contempt of court for violating the prior order.

Motion to compel - A motion to compel is typically filed against the opposing party when the opposing party has failed to comply with discovery or initial disclosure documents. If the judge finds the party has not provided the documents required, has not provided the discovery responses, or has not appeared for a deposition, the judge can issue an order compelling that party to comply and may, in the judge’s discretion, award the party bringing the motion attorney fees.

Notice of hearing - A court required form that is used to provide the opposing party with notice of a particular date for a court hearing.

Opposing party - The person on the opposite side of the case who typically has an opposing interest. In family law cases, the opposing party is frequently the other spouse.

Order - A document signed by a judge setting out the judge’s decision as to the parties’ legal dispute. Orders are enforceable by the contempt powers of the court which include fines and possibly jail if a party fails to comply with the order.

Parenting agreement - An agreement reached in custody mediation that sets out the terms agreement reached and that is signed by both parties.

Parenting class - A four hour class required by the Family Court for all parties involved in a custody action. The class discusses ways to help children through divorce and the rights children have to not be subjected to the legal issues of the parents.

Parenting coordinator - An impartial person appointed by the court in high-conflict custody cases where the parents are unable to communicate with each other to resolve parenting issues. The parenting coordinator is authorized to help the parties reduce misunderstandings, attempt compromises, and identify disputed issues. Further, if the parties encounter an issue regarding the implementation of the custody order that was not addressed in the custody order and they are unable to resolve the dispute themselves, the parenting coordinator may decide the issue for the parties.

Post-separation support - Also referred to as “PSS”. PSS is temporary spousal support designed to provide some financial support to a dependent spouse while waiting for a full alimony hearing.

Property settlement - In North Carolina, the division of property is called equitable distribution. See equitable distribution definition above.

Qualified domestic relations order - Also referred to as a “QDRO”. An order directing the administrator of a retirement plan to set aside a portion of the retirement funds and transfer them to the other spouse without either spouse incurring any income tax consequences for the transfer.

Request for Admissions - A discovery tool used by attorneys to gather information about the facts of a case. The request for admissions is a series of statements that the opposing party may answer by admitting the statement or denying the statement. The opposing party is required to answer the request for admissions within thirty days of receiving the request.

Request for Production of Documents - A discovery tool used by attorneys to gather information about the facts of a case by asking the opposing party to produce documents related to the case. The opposing party is required to produce the documents within thirty days of receiving the request.

Separation/Date of separation - Separation occurs when the spouses no longer reside in the same residence. The date of separation is used for both equitable distribution purposes and for divorce. In equitable distribution, the date of separation value of the property is used in distributing the property. For divorce, the parties must be separated for one full year prior to filing for divorce, with at least one party forming the intent on the date of separation that the separation would be permanent.

Separation Agreement - An alternative to litigation that resolves all issues of the parties such as child custody, child support, alimony, and equitable distribution by a private contract voluntarily entered into by the parties. A separation agreement is not needed for the parties to be separated (see separation above), but is instead designed to resolve the issues between the parties amicably and privately so that the details of the arrangement are not a matter of public record.

Status conference - In equitable distribution cases, the status conference is held with the Family Court Case Coordinator who sets due dates for the completion of mediation, court required forms, and the initial and final pre-trial hearings.

Summary Judgment - A judicial determination where there are no genuine issues of material fact (no one disputes the facts that are important to the case) and that as a matter of law, a certain outcome is appropriate. Summary judgment is frequently used in divorce hearings where a party has met all the legal requirements for divorce (a resident of the state for six months prior to filing the complaint, separated for one full year prior to filing the complaint, and at the time of separation, the party formed the intent that the separation be permanent) and that therefore, as a matter of law, the party is entitled to a divorce.

Summary Judgment - A judicial determination where there are no genuine issues of material fact (no one disputes the facts that are important to the case) and that as a matter of law, a certain outcome is appropriate. Summary judgment is frequently used in divorce hearings where a party has met all the legal requirements for divorce (a resident of the state for six months prior to filing the complaint, separated for one full year prior to filing the complaint, and at the time of separation, the party formed the intent that the separation be permanent) and that therefore, as a matter of law, the party is entitled to a divorce.

Tenancy by the entireties - Land where the deed states it is owned by the parties as husband and wife, or tenancy by the entireties is owned not by the parties as individuals, but by the marriage itself. As the marriage owns the property, a creditor cannot take the property to repay the individual debts of one spouse. If one spouse dies, the other spouse receives the entire property. If the parties divorce, the tenancy by the entireties is broken (because the marriage no longer exists) and the parties own the property together as tenants in common. If an individual tenant owes money to a creditor, the creditor may take that tenant’s interest in the property to pay this debt. If one tenant dies, his or her interest in the property will go to the heirs of the deceased tenant.

Termination of parental rights - A proceeding used to terminate one or both parent’s rights to their child(ren). Frequently brought by the Department of Social Services (DSS) in abuse and neglect cases. Terminating the parental rights severs the right of the child(ren) to inherit from the parent and vice versa. It also terminates the parent’s obligation to provide future child support.

Withdrawal - A motion to withdraw is filed at the end of a court case. When the order allowing withdrawal is entered, it concludes the attorney’s representation.