Durham Family Law Journal.com

Lessen Your Risk of Sexual Assault

2011-05-10T09:48:00.002-04:00

NursingDegree.com has posted a new article entitled "20 Ways to Lessen Your Risk of Sexual Assault." Read the 20 tips here

Wiretapping Teddy Bear Leads to Large Fines

2011-03-13T12:40:00.011-04:00

In this age of tiny digital audio recording devices, some parents embroiled in a child custody dispute may be tempted to conceal such a recorder in their child's beloved teddy bear in an attempt to acquire evidence that the other parent is misbehaving. However, such a plan may prove disastrous.

Healing A Wounded Credit Score

2011-02-22T07:29:00.003-05:00

Many of us have less than perfect credit scores. If you are interested in improving yours, you might find this recent article by Tara Siegel Bernard in the New York Times to be of interest.

Study Says Fighting Style Predictive of Divorce

2011-02-22T06:53:00.003-05:00

The manner of fighting that a married couple employs may predict whether the couple will eventually divorce. Read more about this here

Does your child hate to do her homework?

2011-01-13T11:29:00.002-05:00

If your daughter is balking at doing her homework, perhaps this article will help.

Parent One, Parent Two

2011-01-13T09:24:00.004-05:00

In this article from The Washington Post , we learn that the State Department has decided to make U.S. passport application forms "gender neutral" by removing references to mother and father, officials said, in favor of language that refers to parents as "Parent one" and Parent Two" instead.

What Makes a Happy Marriage?

2011-01-13T09:16:00.002-05:00

Read this interesting article from the New York Times if you want to gain some insight on how to have a sustainable marriage.

Marriage and the Green Card

2010-07-08T13:03:00.002-04:00

Investigating marriage fraud is the topic of this recent article from the New York Times. Apparently it is not so easy to obtain a Green Card.

The Health Hazards of Marriage

2010-06-15T10:56:00.001-04:00

This recent article from CNN sheds some light on the potential health effects of married life and spousal interactions.

Patients' Rights Get A Boost

2010-04-16T09:32:00.011-04:00

On April 15, 2010 the rights of hospital patients to have their wishes respected concerning who may visit them or make medical decisions on their behalf got a boost from President Obama by way of a Presidential Memorandum for the Secretary of the US Department of Health and Human Services (HHS). While the memo will be of assistance to all persons, it will be especially helpful to LGBT patients and their families.

The memo directs the Secretary of HHS to promulgate rules for all hospital that receive federal funding as follows:

Develop visitation policies that will ensure that "...individuals designated by a legally valid advance directive (such as durable powers of attorney and health care proxies) should enjoy visitation privileges that are no more restrictive than those that immediate family members enjoy". and that participating hospitals may not deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability of the visitor.
Guarantee that all patients' advanced directives are respected and that patients' representatives otherwise have the right to make informed decisions.
Provide additional recommendations to the President within 180 days of the date of the memo, on action s HHS can take to address hospital visitation, medical decision-making, or other health care issues that affect LGBT patients and their families.

North Carolina has already taken steps in this direction and its Patients' Bill of Rights gives each patient "the right to designate visitors who shall receive the same visitation privileges as the patient's immediate family members, regardless of whether the visitors are legally related to the patient".

International Travel With Your Child - What You Need To Know

2010-01-15T11:08:00.006-05:00

If you are planning a trip abroad with your child anytime soon, this recent article from the New York Times will surely be of interest to you.

Filing Facts for the Recently Married or Divorced Taxpayer

2010-01-06T17:21:00.013-05:00

If you recently got married or divorced, here are some tips from the IRS you should consider:

1. If you took your spouse's last name or if both you and your spouse hyphenated your last names when you got married, be sure to notify the Social Security Administration (SSA) of the name change well in advance of filing your income tax return. Otherwise, the IRS computers will not be able to match your new name(s) to your Social Security Number(s) when you file your return.

2. If were recently divorced and changed back to your previous last name, you also need to notify the SSA well in advance of filing your income tax return.

3. It is very easy to inform the SSA of your name change, you just need to file a Form SS-5, Application for a Social Security Card at your local SSA office. It ususally takes approximatley 2 weeks for the change to be virified by the SSA.

4. Form SS-5 is available on the SSA website at http://www.socialsecurity.gov/, by calling the SSA at 1-800-772-1213, or you can obtain Form SS-5 at your local SSA office.

International Custody Dispute Between Nebraska and Canada

2010-01-05T10:45:00.006-05:00

It seems that with increasing frequency I read stories in the news about parents embroiled in custody disputes that are international in scope. If you are interested in this topic, you will find a recent story from Nebraska to be of interest. Click here to read the story from Omaha, NE.

Is 50-50 custody a good choice in the long run?

2009-12-10T11:56:00.005-05:00

What follows is a reprint of an interesting article by Gary Direnfeld, MSW, RSW. I hope that you find it as thought provoking as I did.

As soon as the argument over the kids becomes about the 50/50 residential care arrangement, the writing is on the wall that at least one of the parents has lost sight of the best interest of their children.

These kind of fights tend to take on epic proportion and the next issue to be determined becomes who can baby-sit when one or other parent is unavailable because typically neither parent can be available 100% of their 50% of the time with whatever schedule is determined.

Thus these kids grow up in a situation of constant conflict and animosity between the parents. To understand the effect of this, think of your child as a bucket of white paint, clean and pure. Think of the parental conflict as black paint. With every parental fight, a drop of the black paint falls into the bucket of white paint. Try removing the black paint once mixed in. Impossible.

Over time, as more drops of black paint are added, your child, who was once pure like the white bucket of paint, becomes grayed with the luster removed.

When constructing parenting plans, the parental goal must be on a meaningful relationship with their children while being mindful of the demands of work-life and any other time constraints. By developing a parenting plan that is in this sense more rationale, the conflict is removed and the child is spared the discolouration from the tortuous ongoing drops of conflict.

Children who grow up between their parents’ animosity and conflict live for the day when they can leave home to escape the constant dropping of black paint into their lives. They grow weary and angry with their parents and will naturally seek to ultimately get away from them both. Hence a parent may win the 50/50 battle of time with their child, but lose the lifetime relationship when their child becomes an adult in their own right. Your child’s time on earth will be spent more as an adult than as a child. As you lament not having enough time with your son or daughter as a child, think how this can be worsened by losing your time with them as an adult, not to mention your time with your potential grandchildren.

The key here then is not to fight for 50/50 time with the kids, but the kind of sharing of care that allows for a meaningful relationship with the kids. This kind of meaningfulness is measured by supporting school and extra-curricular activities, attending important functions of the child and having some recreational activity time for the mere fun of being together. Meaningful to the child also means freedom from parental conflict and animosity.

The best you can wish for is a 100% relationship with your children with whatever time is available. Any time put towards fighting and you are undermining what you already have.

Concentrate on what you’ve got and the future takes care of itself.

Reprinted by permission of:
Gary Direnfeld, MSW, RSW
Interaction Consultants and I Promise Program Inc.
20 Suter Crescent,
Dundas, Ontario, Canada L9H 6R5
www.yoursocialworker.com

Who decides on the flu vaccine for a minor child?

2009-12-02T15:09:00.006-05:00

The Associated Press reports that an estranged New Jersey couple asked a family court on November 30, 2009 to settle a dispute over whether their school-aged child will be administered the H1N1 Flu vaccine. The parents have joint legal custody which means that they must mutually agree on any non-emergency medical care for their minor child.

In North Carolina when parents who have joint legal custody are unable to reach mutual agreement about non-emergency medical treatment for a minor child the parents must also seek relief from the Court. Ultimately, the Court will have to decide how to modify the parents' legal custody. In some instances, the Court may award sole legal custody to one of the parents. other times, the Court may decide to enter an order specifying "demarcated custody". With demarcated custody, one parent may be assigned the responsibility for making medical decisions while the other parent may be assigned decision-making authority regarding some other aspect of the child's life, for example, the choice of extra-curricular activities.

A Different Response to those Dreaded Words

2009-08-11T11:13:00.009-04:00

No one ever wants to hear his or her partner of many years announce that "I just do not love you anymore." Typically, the response will be tears, anger, threats of lawsuits. In a very interesting article, published on July 31, 2009, in the New York Times, see how author Laura A. Munson chose to respond. Click here to read Munson's article.

Alienation of Affections & Criminal Conversation Claims Lose Some Ground

2009-08-04T17:04:00.010-04:00

House Bill 1110, entitled "An Act To Clarify Procedures In Civil Actions For Alienation Of Affections and Criminal Conversation" was signed into law on August 3, 2009. The effective date of the law is October 1, 2009 and it will apply to actions arising from acts occurring on or after that date. The act is codified at N.C. General Statues sect. 52-13 (a), (b), and (c).

The act make one distinct change to the current laws controlling actions for Alienation of Affections ("AA") and Criminal Conversation ("CC"). Under the new law, after spouses physically separate from one another with the intent of of at least one of them to live permanently separate and apart, a third person who then becomes romantically and/or sexually involved with one of the separated spouses cannot be sued by the other spouse for AA or CC. Currently, a third party risks exposure for claims of AA and or CC if he/she involves him/her self with a married but separated person.

The new law specifies that a person may sue only another natural person, as opposed to a corporation or other entity, for AA or CC.

Finally, the statute of limitations for these civil actions is three years for the last act of the defendant giving rise to the cause of action.

The Pitfalls of Self-representation

2009-07-23T14:23:00.015-04:00

A recent North Carolina Court of Appeals opinion, Gary Michael Sluder v. Christina B. Sluder, illustrates the pitfalls for the unwary that exist for spouses who attempt to represent themselves. Here, the self-represented Defendant, Christina Sluder had her poorly plead claims for equitable distribution and alimony dismissed by the trial court. After a trial on her breach of contract claim, Christina won, but her victory was short lived as it was reversed by the Appellate Court.

Specifics of the Case

Gary and Christina Sluder were married to each other in 1999 and they separated on June 19, 1999. After they were separated and before they were divorced, Gary hand wrote and signed a document dated January 10, 2005 that stated: "I Gary M. Sluder pay to my wife Christina, the sum of on One Thousand Dollars a month in post spousal support." (emphasis added). The courts concluded that what Gary actually meant was post separation support.

Later in 2005, Gary filed for Divorce and the Divorce Judgment was entered on December 30, 2009. Apparently, Gary did not pay Christina the $1,000.00 per months addressed in the January 10, 2005 document, because prior to the entry of the Divorce Judgment, Christina filed pro se pleadings seeking post separation support based on contract from Gary. Christina also attempted, but failed, to properly plead claims for equitable distribution and alimony. Those claims were dismissed by the trial court.

After hearing the evidence, the trial court made the following findings of fact and conclusions of law regarding the uncertified agreement between the parties:

Finding of Fact 7: In early January 2005, the Plaintiff [Gary] agreed to give the Defendant one thousand dollars ($1,000.00) per month so that the Defendant could have evidence of income she would need to rent an apartment for herself and her minor children

Conclusion of Law 1: Pursuant to G.S. 52-10 the Plaintiff owes the Defendant the sum of one thousand dollars (1,000 [sic] per month for a reasonable time after promising the Defendant he would do so.

Conclusion of Law 2: That a reasonable period of time for the Plaintiff to pay the Defendant one thousand dollars ($1,000.00) per month would be eleven (11) months.

The trial court then entered judgment in favor of Christina, awarding her recovery from Gary in the amount of $11,000.00. Gary appealed to the North Carolina Court of Appeals

Types of Marital Contracts

As between themselves, married people can make two distinct types of contracts: (1) separation agreements, and (2) property settlements.

A separation agreement is a contract between spouses providing for marital
support rights and executed while the parties are separated or planning to
separate immediately.

A property settlement provides for the division of property held by the
spouses. Spouses may enter into a property settlement at any time, regardless of
whether they contemplate separation or divorce.

The North Carolina Supreme Court has often noted the differing purposes
underlying the two contracts. The "heart of a separation agreement is the
parties’ intention to live separate and apart forever..." In re Adamee,
291 N.C. 386, 391 (1976). However, a property settlement "contains provisions
... which might with equal propriety have been made had no separation been
contemplated." Jones v. Lewis, 243 N.C. 259, 261 (1955).

N.C. Gen. Stat. § 52-10.1 governs the execution of separation agreements. Pursuant to the statute, to be valid and enforceable a separation agreement must satisfy all of the following requirements:

•The agreement must be in writing
•The terms of the agreement must be consistent with public policy
•The agreement must be acknowledged by both of the spouses in the presence of a certifying officer as defined by N.C. Gen. Stat. § 52-10 (b).
•The certifying officer must not be a party to the contract

A certifying officer is a "... notary public, or a justice, judge, magistrate, clerk, assistant clerk, or deputy clerk of the General Court of Justice, or the equivalent or corresponding officers of the state, territory or foreign country where the acknowledgment is made." N.C. Gen. Stat. § 52-10 (b)

The execution of property settlements is governed by N.C. Gen. Stat. § 52-10 (a).

The Appeal

On appeal, Gary argued that the trail court erred by concluding the January 10, 2005 document was an enforceable agreement governed by N.C. Gen. Stat. § 52-10. Instead, Gary contended that the agreement concerned support rights made during separation and as such that it was governed by N.C. Gen. Stat. § 52-10.1. Further, because the agreement was not acknowledged by both of the parties before a certifying officer as required by N.C. Gen. Stat. § 52-10.1, Gary argued that the agreement was not enforceable. The North Carolina Court of Appeals agreed with Gary and reversed the trial court’s award of recovery to Christina because the agreement was invalid under N.C. Gen. Stat. § 52-10.1.

Social Networking Can Leave You with Egg on Your Face - Or Worse!

2009-07-22T10:47:00.014-04:00

Social networking is all the rage. However, people involved in divorce family law disputes need to give very serious thought about whether social networking is a good idea while thier case is on-going. My best advice to anyone involved in any type of family law litigation is to shutdown all of your social networking sites. This means no Face Book, My Space, Linked In and the like.

If the reasons are not apparent, then consider the following scenarios:

SCENARIO #1: Sally and Dick are separated and they are involved in a bitter child custody dispute. One of Sally’s best friends, Betty, assumes a new name, Ginger Smith, adopts as her photo that of Ginger off the old tv show Gilligan’s Island, and sets herself up on Face Book. Ginger then sends out a friend request to Dick who accepts the invitation. Ginger and Dick begin to exchange e-mails and during their correspondence, Dick makes numerous statements about his child rearing philosophy that will not look good for him in Court. Imagine Dick’s surprise when Sally and Dick’s lawyers exchange their witness lists immediately before trial and Dick sees that Ginger Smith is listed as one of Sally’s witnesses!

SCENARIO #2: Bill and Jennifer are involved in a custody dispute. Their son is 14 months old. Jennifer takes the child with her on a road trip to visit with her parents. On the morning of the trip, Jennifer takes a photo of the baby sitting in its car seat with three tall cans of beer arranged in the seat. Jennifer posts this photo on her social networking page with the caption The only way to take a read trip with a kid! Bill sees the posting and uses it at trial as evidence to bolster his contentions that Jennifer is an unfit parent.

SCENARIO #3: Jim and Joan are separated and Joan is under a court order to pay alimony to Jim. Joan files a motion with the court asking the court to reduce the amount of alimony she has to pay and in support of her motion, Joan says she has been laid off and has no job prospects in sight. Joan then posts a to her Twitter account and says she had a fabulous interview with XYZ, Corporation and has been offered a job. Jim sees the Twitter posting and introduces it as evidence at the hearing on Joan's motion to reduce her alimony payments.

Even though social networking can be fun, the risk that something you post will come back to haunt you is very real. Under the theory of better safe than sorry, I say, shut down the social networking if you are involved in a family law dispute.

POSSIBLE CHANGES IN N.C. LAW INVOLVING HEART BALM TORTS

2009-05-17T13:08:00.015-04:00

On May 14, 2009, House Bill 1110 passed the North Carolina House of Representatives. The legislation is entitled An Act To Clarify Procedures In Civil Actions For Alienation of Affection And Criminal Conversation. Now the Bill will move to the North Carolina Senate for its consideration.

North Carolina is one of the few states in which an allegedly wronged spouse may sue an third party under the theories of alienation of affection and criminal conversation, and if successful obtain money damages.

To prove a claim for alienation of affections the Palintiff must show the following:

Plaintiff and his/her husband were happily married and a genuine love and affection existed between them; and
Their love and affection was alienated and destroyed; and
The wrongful and malicious acts of Defendant produced the alienation of affections.

To prove a claim for claim for criminal conversation, a Plaintiff must present evidence demonstrating:

The existence of a marriage between the him/herself and his/her spouse, and
Sexual intercourse between Defendant and Plaintiff’s spouse during the marriage of Plaintiff and his/her spouse which occurred in North Carolina.

At present, it does not matter whether the tortious acts occurred while the spouses were still living together or if the acts in question took place at some point after the spouses had separated.

It appears that the primary purpose of House Bill 1110 is to limit the applicability of these torts to acts occurring before the spouses separated. For the purpose of House Bill 1110, the word "separation" will be interpreted according to Chapter 50 of the North Carolina General Statutes. Chapter 50 is the portion of the North Carolina General Statutes in which the majority of family law statutes are codified.

Additionally, under House Bill 1110, only natural persons, as opposed to other entities such as corporations, will be subject to such lawsuits; and, finally, the statute of limitations for these heart-balm torts will be three years from the last act giving rise to the cause of action. In my opinion, the torts of alienation of affection and criminal conversation are out-dated and should be eliminated in their entirety. However, our legislature has been reluctant to do so. Therefore, House Bill 1110 seems to offer the next best alternative to outright abolishment. If you agree, please contact your Senator and let him or her know how you feel.

How Do I/We Tell The Children?

2009-04-19T13:05:00.011-04:00

Frequently, my clients ask me for advice on the best way to tell their children that they are going to separate from their partner and that the separation is probably going to be permanent. Telling your children that you and their other parent can't live together anymore has got to be one of the most difficult tasks that you face once you have decided to leave the marriage/relationship. Despite the difficulty, telling the children about the upcoming separation in an appropriate way is a critical step toward helping them to cope effectively with this major life change. Ideally, you and your partner should both be a present for this conversation. However, if the two of you are concerned that you will be unable to resist the urge to blame each other or otherwise end up in an argument, it is better for each of you to speak with the children separately. Regardless of whether the two of you speak with the children jointly or separately, it is critical that you assure the children that they have done nothing to cause this separation and it is equally important that you resist the urge to blame the other parent for the separation. This link will take you a very helpful article which details Twelve tips for how to tell your children that you and your partner have decided to separate and divorce. The author of the article is Dr. Rafael Richmond, Ph.D.

According to Webster the Definition of Marriage Has Changed

2009-03-27T10:49:00.013-04:00

Recently there has been a lot of discussion over how to the term "marriage" should be defined legally. Although not a legal authority, Merriam-Webster's Collegiate Dictionary no longer defines marriage as the union of one man and one woman. Instead, the dictionary now also defines "marriage" as "the state of being united to a person of the same sex in a relationship like that of a traditional marriage," reports the ABA Journal.

While the law is lagging behind the dictionary, perhaps it will catch up soon. It is way past time for the legal definition of marriage to include committed same sex partners. Once this is accomplished, then we can move forward and open the doors for same-sex couples to enjoy all of the legal rights, entitlements and obligations currently available only to those whom the law permits to marry. Common sense and decency compel this result.

SO YOU SAY YOU WANT TO BE A PARENT...

2009-03-16T10:56:00.002-04:00

I received the following "job description"from a fellow family lawyer and I share it with you to brighten your Monday morning:

POSITION:
Mother, Mom, Mommy, Mama, Ma
Father, Dad, Daddy, Dada, Pa, Pop

JOB DESCRIPTION: Long term, team players needed, for challenging, permanent work in an often chaotic environment. Candidates must possess excellent communication and organizational skills and be willing to work variable hours, which will include evenings and weekends, including frequent 24 hour shifts on call. Some overnight travel is required, including trips to primitive camping sites on rainy weekends and endless sports tournaments in far away cities! Travel expenses are not reimbursed. Extensive courier duties also required.

RESPONSIBILITIES: Job responsibilities continue for the rest of your life. You must be willing to be hated, at least temporarily, until someone needs $5. You must be willing to bite your tongue repeatedly. Also, you must possess the physical stamina of a pack mule and be able to go from zero to 60 mph in three seconds flat - in case, this time, the screams from the backyard are not someone just crying wolf. You must be willing to face stimulating technical challenges, such as small gadget repair, mysteriously sluggish toilets and stuck zippers. You must screen phone calls, maintain calendars and coordinate production of multiple homework projects. You must have ability to plan and organize social gatherings for clients of all ages and mental outlooks. Must be willing to be indispensable one minute and an embarrassment the next. Must handle assembly and product safety testing of a half million cheap, plastic toys, and battery operated devices. Must always hope for the best but be prepared for the worst. Must assume final, complete accountability for the quality of the end product. Responsibilities also include floor maintenance and janitorial work throughout the facility.

POSSIBILITY FOR ADVANCEMENT & PROMOTION: NONE. Your job is to remain in the same position for years, without complaining, constantly retraining and updating your skills, so that those in your charge can ultimately surpass you.

PREVIOUS EXPERIENCE: None required (unfortunately). On-the-job training is offered on a continually exhausting basis.

WAGES AND COMPENSATION: Get this! You pay them! Offering frequent raises and bonuses. A balloon payment is due when they turn 18 because one assumes that college will help them become financially independent. When you die, you give them whatever is left. The oddest thing about this reverse-salary scheme is that you actually enjoy it and wish you could only do more.

BENEFITS: No health or dental insurance, no pension, no tuition reimbursement, no paid holidays and no stock options are offered. This job supplies limitless opportunities for personal growth, unconditional love, and free hugs and kisses for life if you play your cards right.

Heart Balm Torts Alive & Well in NC

2009-03-03T18:43:00.002-05:00

The vast majority of states have abolished the so-called “heart balm torts” of alienation of affections and criminal conversation. However, these two torts are alive and well in North Carolina. Because of this, it’s in your best interest for you to understand these torts so that you don’t run afoul of them.

For those of you who are not familiar with the term, a “tort” is defined by Black’s Law Dictionary (5th edition) as “[a] private or civil wrong or injury, other than a breach of contract, for which the court will provide a remedy in the form of an action for damages.” In North Carolina, a Plaintiff who sues a Defendant for alienation of affections and/or criminal conversation is entitled to try his/her case before a jury.

To prove a claim for alienation of affections, the Plaintiff must produce evidence of the following: (i) Plaintiff and his/her husband were happily married and a genuine love and affection existed between them; (ii) their love and affection was alienated and destroyed; and (iii) the wrongful and malicious acts of Defendant produced the alienation of affections. (A malicious act, in the context of an alienation of affection claim, has been loosely defined to include any intentional conduct that would probably adversely affect the marital relationship).

While an alienation of affections claim is most often based upon conduct that occurred before the spouses began to live separate and apart, the claim can also be supported by evidence of post-separation acts by the Defendant. Destruction of the marriage is not a necessary element of claim for alienation of affections. Rather, the action lies for the diminishment of affection within the marital relationship. Thus, while damages will obviously be affected, the action lies for the diminished affection, and a partial loss of affection is sufficient to support the action. It is also not necessary for the Plaintiff to show that he/she knew about the alienating behavior at the time it was occurring. In fact, in most instances, the wronged spouse will only learn of the Defendant’s alienating actions after the damage has been done.

To prove a claim for claim for criminal conversation, a Plaintiff must present evidence demonstrating: (i) the existence of a marriage between the him/herself and his/her spouse, and (ii) sexual intercourse between Defendant and Plaintiff’s spouse during the marriage of Plaintiff and his/her spouse. It is also necessary to be able to show that the act of sexual intercourse took place in North Carolina.

A claim for criminal conversation can be based upon post-separation sexual intercourse between Defendant and Plaintiff’s spouse. The existence of a separation agreement between a Plaintiff and his/her spouse which purportedly contains a waiver between the spouses of their right to exclusive sexual intercourse with each other will not shield the Defendant from liability for criminal conversation based upon the Defendant’s post-separation sexual intercourse with Plaintiff’s spouse. The Defendant is only protected from liability in this regard if the Plaintiff and his/her spouse’s separation agreement contains an express waiver of grievances against third parties for tortious conduct. So, as unromantic as it may sound, if you are involved with someone who is separated but not yet divorced, you would be wise to ask to read his/her separation agreement and
make sure that the 3rd party waiver is included before you begin to have a sexual relationship with him/her.

Watch out for the Doctrine of Necessaries

2009-02-24T16:40:00.020-05:00

Sam and Audrey married each other in 1996, it was a second marriage for both of them. After they'd been married for 8 years, Sam was diagnosed with cancer and he received treatment for the disease at a local hospital. Sam had health insurance which paid for most, but not all of his medical bills. Sam got behind on paying his personal debts, including the hospital bill. Eventually, Sam, not with Audrey,filed for Chapter 7 bankruptcy protection from his creditors. At the time of the bankruptcy filing, over half of Sam’s unsecured debt was for medical bills associated with his cancer treatment. Sam’s debts were discharged in early 2006. Sam died in the spring of 2007. Following Sam’s death, the hospital sued Audrey to recover Sam’s unpaid medical expenses and the hospital won. See, Moses Cone Memorial Hospital Operating Corp. v. Hawley , an opinion of the North Carolina Court of Appeals which was filed on February 17, 2009.

I imagine that you might find the result described above to be unfair and shocking. How can Audrey be responsible for debts for which Sam, himself, had he lived, would not have been liable? The answer to that question is something called the doctrine of necessaries.

The necessaries doctrine comes from the English common law duty of a husband to provide for the necessary expenses of his wife and child. In modern day North Carolina, the doctrine imposes liability on a gender-neutral basis. What this means is that one spouse is personally liable for the necessary expenses incurred by his/her spouse.

According to the noted North Carolina legal scholar, Suzanne Reynolds, courts in other states have found necessaries to include such things as, medical care, funeral expenses, food, clothing, shelter, and transportation. Here in North Carolina, the "necessary" at issue in most appellate cases involves medical services.

To prevail under the theory of the doctrine of necessaries: the provider of the necessary services or goods must show: that (1) services or goods were provided to the spouse; (2) the services or goods were necessary for the health and well-being of the receiving spouse; (3) the person against whom the action is brought was married to the person to whom the necessary services or goods were provided at the time such services were provided; and (4) the payment for the necessaries has not been made.

There is an exception to the doctrine of necessities for separated spouses. However, merely being separated is not enough. In order for a spouse to take advantage of the separation exception, he/she must show that the provider of the necessary services or goods, e.g. the hospital, had actual notice of the parties’ separation at the time the services were rendered or the goods supplied.

If we continue to see an increase in the State's unemployment rates, I wonder if we will also see more creditors using the doctrine of necessaries as a way to recover unpaid debts.

Ways to Avoid Identity Theft

2009-02-16T12:12:00.000-05:00

Consider the following tips if you want to avoid identity theft:

Place the entire contents of your wallet on a photocopier and reproduce both sides of all of your credit cards, drivers license, etc. That way, if you lose your wallet, you will have a record of what it contained. Keep the copy in a safe place.

When speaking on your cell phone in a public place, be careful not to give out personal identifying information such as your date of birth, your social security number, your credit card number, etc. You never know who might overhear your end of the conversation and take advantage of your identifying information

PERSONAL CHECKS

If you pay your credit card bill(s) by personal check, do not put the entire credit card account number on the "For" line of the check. Instead, just put the last four digits of your account number.

Include your work phone number on your personal checks instead of your home telephone number. Similarly, you may want to consider having your work address or a P.O. Box listed on your personal checks rather than your home address.

Some authors have suggested that instead of having your full name printed on your personal check that you should just use you initials and last name, e.g. M. J. Smith rather than Mary Jane Smith.

NEVER have your Social Security Number printed on your checks.

DO NOT have your Driver's license number printed on your checks.

CREDIT CARDS

Do not sign the back of your credit cards. Instead put "Photo ID required".

Keep a an up-to date list of all of your credit cards. On this list include the name of the credit card company, your account number and the toll free phone number for each card. Keep your list in a safe place. By having the list readily available, if your credit card is lost or stolen, you will have the necessary information so you can immediately call your credit card company and cancel the account.

If you lose a credit card call the credit card company IMMEDIATELY to cancel the card.

If you lose a credit card call all three of the major national credit reporting agencies immediately to place a fraud alert on your name. here are the toll-free numbers for the agencies: Equifax: 1-800-525-6285 Experian (formerly TRW): 1-888-397-3742 TransUnion: 1-800-680-7289.

The fraud alert will cause any company that checks your credit to know that your information has been stolen/lost and the company will phone you to obtain your authorization before issuing new credit.

SOCIAL SECURITY CARD

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What is Famly Law and why do you need a Family Law Attorney?

2009-02-15T15:49:00.000-05:00

Family Law is an area of law practice that includes, but is not limited to all of the following issues:

Prenuptial Agreements
Domestic Partnership Agreements
Separation and Property Settlement Agreements
Divorce
Equitable Distribution of Property
Adoptions
Paternity Matters
Legitimation of a child born outside of wedlock
Child Custody and Visitation (including claims by Grandparents and certain other Third Parties)
Child Support
Spousal support.

A competent Family Attorney must be familiar with divorce tax issues, the effects of divorce on the ownership of real estate, the somewhat arcane and complex rules that govern the division of retirements assets, child development issues and what must be considered when determining the best interests of the children. If one or both of the parties has stock options, it takes special expertise to know how to go about valuing and dividing them.

Because of the complexity of the legal issues that arise, Family Law is not something a lawyer should "dabble" in. To do so leads to a very real likelihood that his or her client will be ill served. From the perspective of protecting yourself and your future, you owe it to yourself to engage the services of a lawyer who has the requisite experience and with whom you feel that you can work.

It is possible, with competent legal representation, for your divorce case to proceed smoothly and with little or no acrimony. It has been my experience that while there are some couples who are bound and determined to fight, most people, if given proper guidance, will be able to bring their hurt feelings under control and work through a divorce settlement to the advantage of everyone concerned. I doubt that you would try to give yourself a root canal or that many of you would attempt to rewire your home for electricity. Instead, realizing that you did not have the knowledge and expertise to do so, you would call on the endodontist for your root canal and you would get an electrician to rewire your house. Similarly, you proceed at your peril when you attempt to navigate a separation and divorce without the guidance of a qualified Family Lawyer.

In these tough economic times, you may wonder whether you can afford to retain a lawyer. It is my definite belief that you really cannot afford not to at least consult with a qualified Family Law attorney before you take any drastic steps such as moving out of the marital home.