By Stephen E. Robertson, Managing Partner, Higgins Benjamin, PLLC
Most of us get our perceptions of lawyers from TV, hairdressers, jilted relatives, domestic violence news accounts and other sensational but less than reliable sources. When we face an often emotionally charged breakup, we might think “I want the toughest, meanest junkyard dog litigator I can get.” In reality, there are no statistics that expensive, litigation-hungry lawyers get better results.
There are two ways to walk through a marital dissolution – by agreement and through litigation. Lawyers love to litigate. They love to win in court – losing not so much – but family law clients seldom win and lose. More often, neither side is pleased with the result after trial. Both are emotionally drained and both feel they have spent an inordinate amount of their marital estate for legal counsel. Sometimes, clients feel like they lose control of the process. They go to court; nothing happens, they return, another continuance and so on. Ask any District Court Judge and he or she will tell you the courts are overcrowded. It is ultimately the client’s choice whether he or she wants to travel the road to the courthouse or pursue settlement by agreement, but if you are facing an inevitable breakup of your marriage, you should consider alternatives to litigation.
The overwhelming majority of divorce related lawsuits settle prior to trial anyway. The State of North Carolina wants cases settled before trial as a matter of public policy. There are statutory requirements that all lawsuits go through mediation before they are scheduled for trial. Where children are concerned, mothers and fathers in Guilford, and several other counties, must attend a 4-hour educational program offered by the Children’s Home Society of North Carolina called “Parenting Under Two Roofs,” attend mediation orientation, and then attend mediation itself. These programs are provided at little or no cost, and lawyers do not attend the mediation. It is an opportunity for the parents to hammer out a parenting agreement with the aid of a well-trained, experienced mediator. Child support obligations are usually, but not always, determined by a mechanical application of a formula set out in the North Carolina Child Support Guidelines, so there is seldom a need for a child support trial.
The remaining issues, the only issues for a couple with no children, are splitting the assets and debts acquired during the marriage, and determining if one spouse or the other should receive alimony. If alimony is appropriate, then the amount and duration must be determined. These matters are also the subjects of mandatory mediation. Financial mediation, unlike child custody mediation however, is not paid for by the state and your lawyers will be heavily involved. Many family financial cases settle in mediation. While a mediated settlement is usually preferable to a trial, the settlement agreement is often hastily assembled at the end of a long day or two of negotiations. Why not use a more deliberative process where the spouses are engaged over time so they can give these all-important, life-changing decisions more than a day or two of intense consideration and negotiation?
There is a time-proven method for making both the child related and financial determinations known as Collaborative Family Law. Since its inception in 1991, more than 22,000 lawyers have been trained in Collaborative Law worldwide. In 2010, the International Association of Collaborative Professionals published survey results finding that 90% of cases settled while only 10% terminated prior to settlement of all issues.
It works because you and your spouse maintain control of your outcomes. You have the benefit of a respectful, creative and individualized process. Both of you can choose a lawyer trained in the process through the Triad Collaborative Family Law Practice Group (www.triadcollaborative.com)
Further, you can choose to involve a Divorce Coach, a Child Specialist to bring your children’s needs and voices to the table, and a neutral Financial Specialist to help you understand and resolve the financial components of your divorce. You resolve the issues through a series of face-to-face meetings, on your time schedule, and with your professional team.
The practice of family law gives lawyers the chance to be of service to clients at a critical time in their lives and in a very personal way. Collaborative Family Law practitioners offer a private, cost-effective, efficient, dignified process that allows clients and their families to have the best possible post-divorce relationships – without going to court.
If you would like to discuss an issue involving Family Law, Collaborative Family Law, Divorce, or Child Custody, contact Steve Robertson at (336) 273-1600 or firstname.lastname@example.org.
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By: Stephen Robertson, Member, Higgins Benjamin, PLLC
The common wisdom among trial lawyers is that judges will try their best to get it right. Our best judges are keen legal scholars, ethically and morally upright, and with solid judicial temperament. But, even if these loftier attributes, goals and motives do not steer the court in the right direction, judges at least want to get it right because they hate to have a decision reversed by the Court of Appeals.
Last March, Carteret County Judge Paul M. Quinn, went “off the grill” to “advocate a little” for Defendant/child support obligor, Gregory Kendall. Judge Quinn refused to register a Colorado child support order despite that Kendall offered none of the required statutory defenses to registration. Under North Carolina Statute § 52C-6-607, the court “shall” register a foreign order unless the Defendant can prove an irregularity in the underlying order or a defense under North Carolina law.
The defense Kendall offered was his purported inability to earn wages due to the fact that he had been improperly required to register as a sex offender—a purely equitable defense, as the trial court acknowledged in its order. There is no authority allowing that an equitable defense may be raised to defend against registration and enforcement of an out-of-state child support order.
At trial the judge told Mr. Kendall, “they’re going to appeal this so I feel for your position. I’m going to buy you a little more time on this but eventually this is going to come down on you, okay?” The Court of Appeals recently reversed, just as Judge Quinn forecast. Carteret County v. Kendall, 2014 N.C. App. LEXIS 24, 2014 WL 44036 (Jan. 7, 2014).
If you would like to discuss child support, out-of state family law, or any other North Carolina family law issue, contact Steve Robertson, NC State Bar certified in Family Law, at (336) 273-1600 or email@example.com.
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