Whether you are a step-parent seeking to adopt your step-child, or are wanting to adopt a relative or just seeking to adopt a child you've grown to love, the addition of a child to your family is a wonderful, exciting time.  You want to make sure the adoption paperwork is done right and is legal. The statutes regarding adoption are very specific and vary depending on who is doing the adopting.  Because parental rights are involved, you should be careful to select an attorney who is experienced in handling adoptions. 

Not every custody case has to turn into a "custody battle".   Many parents are able to reach agreements about custody, and just want to confirm their agreement and "get it in writing."  Attorney Mobley can assist you with drawing up a valid legal document to preserve your custody agreement.

If you and the other parent can't agree on custody, it is particularly important for you to find competent, local counsel.  From your initial meeting with Attorney Mobley, you will have an understanding of the overall process and how your situation can best be resolved.  Whether you are filing for custody or seeking a change in a custody order that has already been entered, Attorney Mobley can advise you about your rights and prepare a plan for meeting your reasonable goals so that you can spend less of your time worrying about the outcome of your case and more time enjoying precious moments with your children.

Child support can be a touchy subject--whether you are the parent paying support or the one receiving support.  I find that many of the disputes surrounding child support exist because people do not understand the law governing how support obligations are calculated.    Whether you are seeking child support or someone has asked you to pay support or you are trying to collect past-due child support, it is important for you to have an attorney review the information relevant to calculating support so that the amount of support is appropriate under the law and your circumstances. Attorney Mobley can also assist parents who have been contacted by Child Support Enforcement for payment of child support. 

Terminating someone's parental rights is a significant legal step and it must be handled with care.  The appellate courts have been very busy these last few years with appeals from termination hearings where there are errors in the termination of parental rights process.  When there are errors in terminations, lives of children are in upheaval and this can be upsetting to them and to the parents involved.  Attorney Mobley is in juvenile court each week and is experienced in the area of termination of parental rights.   

Children whose fathers are not listed on their birth certificates may have different rights than those bearing a father's name.  Also, fathers who are not listed on a child's birth certificate may have different rights and responsibilities than if their names were on the birth certificate.   If you have questions about paternity or legitimation, Attorney Mobley can advise you about your rights and options. 

Getting started and planning ahead

There are several factors you should consider before you decide to separate from your spouse: where will you live? where will your children live? how will you support yourself?  how will you or your spouse support the children?  It can be in your best interest to plan a budget and collect copies of important paperwork, including pay stubs, recent bills, information about your investments, bank account
statements, details about real estate and personal property, etc. 
 
What qualifies as living separate and apart?

One of you will have to move out of the marital home in order for you to be considered living separate and apart. You both must continue to live separate and apart for one year if you want to seek a divorce in North Carolina. Some people are concerned that moving out may be considered abandonment.  Marie Mobley can advise you about options concerning the
transition to living separate and apart so that it is  not considered abandonment. Some people have spouses that refuse to move out or separate.

What about "separation papers"?

Generally speaking, no paperwork is required for you to separate from your spouse.  However, since you can't file for divorce in North Carolina without living separate and apart from your spouse for at least one year (unless you are seeking a divorce on the grounds of incurable insanity), the period of time between separation and filing for divorce is often a good time to address issues such as child custody and support, spousal support or alimony, and equitable distribution.  Marie Mobley can help protect your rights and prepare and negotiate a separation
agreement (a.k.a. "separation papers") that address these and other issues.  

Be careful about drafting your own agreement or using store bought separation agreements.  By drafting the paperwork yourself and proceeding without the advice of an attorney, you may waive and lose important rights.  Store-bought agreements or agreements you find on the internet are often prepared by out of state companies or are not tailored to North Carolina law.  if so, they may not be worth the paper they are printed on.  On the reverse, a carefully drafted separation agreement can resolve all legal issues associated with the dissolution of a marriage and can be enforced by a court, so that you can move on with your life.

If an agreement doesn't work?

Sometimes it is necessary to file a lawsuit seeking Child Custody, Child Support, Spousal Support or Alimony, and Equitable Distribution.  If a lawsuit is necessary, Marie Mobley will counsel you about your options and guide you through the various  processes required for domestic lawsuits North
Carolina.       

If your spouse's attorney drafts an agreement?

Your spouse's attorney has an ethical obligation to represent your spouse and look out for his or her interest.  Naturally, you can see why it would be important to have your own attorney looking out for your interests.  If your spouse or spouse's attorney presents you with a separation agreement, make an
appointment with Marie Mobley so that she can discuss your options with you and, if retained, represent your interests.

Absolute Divorce

Once you have lived separate and apart for a year and if you or your spouse have been a legal resident of North Carolina for at least six months, you can file for divorce in North Carolina. It is not necessary to show "fault" (such as an extra marital affair) in order to get divorced in North Carolina.

If you have not already addressed issues of child custody, support, spousal support, alimony, and equitable distribution, you can also include these causes of action in the divorce Complaint.  

Attorney Mobley handles "simple divorces"--where there are no custody, support, or property issues--for a flat fee.  In addition to being inexpensive, she may be able to handle your divorce without your ever having to go to court to testify.  

Chances are, if you've been married, you've accumulated assets and debts.  Some of these items may be only in your name, only in your spouse's name, in both of your names, or in somebody else's name.  Regardless of whose name the asset or property is in, you should discuss this issue with an attorney prior to getting divorced.   Even where couples agree on who is getting what property and who is paying what debt, they often overlook issues like titles and promissory notes.  Attorney Mobley can advise you about these issues so that issues like "whose name is on the car title" don't rear their ugly heads years down the road.  If you and your spouse can't agree on how to divide your property or debts, Attorney Mobley can help you with that, too.  North Carolina provides a cause of action called Equitable Distribution for the Courts to use to classify, value, and distribute property and debts.

Alimony is not just for women, is not just for the rich, and is not just money that is paid because somebody had an affair. 

Definitions

Alimony is an order for payment for the support and
maintenance of a spouse or former spouse.  

Alimony can be paid periodically, such as monthly, or in a lump sum, for a specified or for an indefinite term.  

A claim for alimony is lost, if not raised before a court enters a divorce judgment, thereby divorcing you and your spouse.   So if you have been sued for divorce, you may have a claim for
alimony.

Postseparation Support ("PSS") is spousal support that is paid until the earlier of any of the following:
a. The date specified in an order for PSS;
b. The entry of an order awarding or denying alimony;
c. The dismissal of the alimony claim;
d. The entry of a judgment of absolute divorce if no claim of alimony is pending at the time of the entry of the judgment of absolute divorce; or
e. Upon the termination of post-separation support as provided by statute. An order for payment for the support and maintenance of a spouse or former spouse.  

A claim for PSS may be made in an action for divorce, for annulment, or for alimony without divorce.  If PSS is ordered at the time of the entry of a judgment of divorce, a claim for alimony must be pending at the time of the entry of the judgment of divorce.   If you have been sued for divorce, you
may have a claim for PSS.  Contact Marie Mobley to discuss your divorce or PSS case.

Qualifying for Postseparation Support

In order to qualify for PSS, the court will consider the financial needs of you and your spouse.  The court will base its award on your accustomed standard of living, the present employment
income and other recurring earnings of you and your spouse from any source, both of your income-earning abilities, your separate and marital debt service obligations, the expenses reasonably necessary to support each of you, and both of your
legal obligations to support other people.

If you are seeking PSS and there are no issues about your marital misconduct, you are entitled to PSS if you are a dependent spouse and the court finds that your resources are not adequate to meet your reasonable needs and that your spouse had the ability to pay.  

Qualifying for Alimony

In order to qualify for an alimony award, the court must find that the party seeking alimony is a dependent spouse, the party from whom alimony is sought is a supporting spouse, and that an award of alimony is equitable after considering all relevant
factors.  

If you are seeking alimony and the court finds that you have participated in an act of illicit sexual behavior during your marriage and prior to or on the date of your separation, the court cannot award you alimony.  

If the court finds that the party you are seeking alimony from, i.e. the supporting spouse, participated in an act of illicit sexual
behavior, during the marriage and prior to or on the date of separation, then the court shall order alimony.  

If you and your spouse each participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then the court has discretion to grant or deny alimony after considering all circumstances.

Amount & Duration

The court has discretion in determining the amount, duration, and manner of payment of alimony.  In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including sixteen factors
established by statute.


Attorney Fees (PSS and Alimony)

If a dependent spouse would be entitled to alimony or PSS, upon application of such spouse, the court may enter an order for reasonable counsel fees for the benefit of such spouse, to be paid and secured by the supporting spouse in the same manner
as alimony or PSS


Changing Postseparation Support Amount

An order for PSS that has been entered, whether contested or entered by consent, may be modified or vacated at any time, upon a motion in the cause and a showing of changed circumstances by either party or anyone interested.


Changing Alimony Amount

An order for Alimony that has been entered, whether contested or entered by consent, may be modified or vacated at any time upon a motion in the cause and a showing of changed circumstances by either party or anyone interested.

When an order for alimony has been entered by a court of another jurisdiction, a North Carolina court may, upon gaining jurisdiction of both parties, and upon a showing of changed circumstances, enter a new order for alimony which modifies or supersedes a previous order to the extent that it could have
been modified in the jurisdiction where it was granted originally.

Marital Misconduct

Marital misconduct is one of several factors the court considers in determining whether and how much PSS to award.  G.S. 50-16.1A(3) defines martial misconduct as any of the following acts that occur during the marriage and prior to or on the date
of separation:
a. Illicit sexual behavior;
b. Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought;
c. Abandonment of the other spouse;
d. Malicious turning out-of-doors of the other spouse;
e. Cruel or barbarous treatment endangering the life of the other spouse;
f. Indignities rendering the condition of the other spouse intolerable and life burdensome;
g. Reckless spending of the income either party, or the destruction, waste, diversion, or concealment of assets;
h. Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome;
i. Willful failure to provide necessary subsistence according to one's means and condition so as to render the condition of the other spouse intolerable and life burdensome.

Either spouse may request a jury trial on the issue of marital misconduct.

Definition

Domestic Violence has a specific definition in North Carolina.  It is the commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person with whom the
aggrieved party has or has had a personal relationship:
(1) Attempting to cause bodily injury or intentionally causing bodily injury; or
(2) Placing the aggrieved party or a member of the aggrieved party's family or household in fear of imminent serious bodily injury or continued harassment (as defined by statute and that rises to such a level as to inflict substantial emotional distress); or
(3) Committing any act defined in G.S. 14-27.2 through G.S. 14-27.7.

Domestic violence does not include acts of self-defense.

Domestic violence is distinguished from other violent offenses in that there must be a personal relationship between the person alleged to have committed the violent act and the party aggrieved by the violence.  

Taking Action as a Victim of Domestic Violence

Any person who resides in North Carolina can file a civil action or can file a motion in an existing domestic action alleging acts of domestic violence against him/herself or a minor child who resides with or who is in the custody of such person.  You are
entitled to file this action without an attorney's assistance.  If you live in Johnston County, North Carolina, forms are available in the Office of the Clerk of Superior Court in Smithfield.  No court costs are assessed to file, issue, register, or serve a domestic violence protective order or petition for a
protective order or witness subpoena.

You do not have to proceed with an attorney, but you are also not entitled to a court appointed attorney.  If you can afford an attorney, it is a good idea to consult with one and have one represent you at the return hearing.  If you cannot afford an attorney, there are a number of agencies that may be able to assist you.

Because hearings on domestic violence are handled rather quickly, you should not delay in contacting an attorney.   As often happens, the day of the return hearing, you will see that the defendant has an attorney.  The court may not grant you a continuance on the day of the return hearing in order to give
you time to hire an attorney. Marie Mobley has the experience to assist you in court.

Emergency Relief

A party may move the court for emergency relief if he or she believes there is a danger of serious and immediate injury to him/herself or a minor child.  A hearing on the motion for emergency relief, where no ex parte order is entered, shall be held after 5 days notice of the hearing to the other party or after 5 days from the date of service of process on the other
party.  

Prior to the hearing, if it clearly appears to the court from specific facts shown that there is a danger of acts of domestic violence against the aggrieved party or a minor child, the court may enter orders as it deems necessary to protect the aggrieved party or minor child.  A temporary order for custody entered ex parte and prior to service of process and notice
shall not be entered unless the court finds that the child is exposed to a substantial risk of physical or emotional injury or sexual abuse.  

If the court enters an ex parte order, the court shall hold a hearing within 10 days from the date the order is issued.

Other Relief

If the court finds that domestic violence has occurred, the court shall grant a protective order (DVPO) restraining the defendant from further acts of domestic violence.   The court can order
several types of relief, including:
(1) Directing a party to refrain from acts of domestic violence;
(2) Granting a party possession of the residence of the parties and excluding the other party from the residence;
(3) Requiring a party to provide a spouse or his/her children suitable alternate housing;
(4) Awarding temporary custody of minor children and establishing temporary visitation rights;
(5) Ordering the eviction of a party from the residence and assistance to the victim in returning to it;
(6) Ordering either party to make payments for support of a minor child as required by law;
(7) Ordering either party to make payments for the support of a spouse as required by law;
(8) Providing for possession of personal property of the parties;
(9) Ordering a party to refrain from threatening, abusing, or following the other party; harassing the other party; or otherwise interfering with the other party;
(10) Awarding attorney's fees to either party;
(11) Prohibiting a party from purchasing a firearm for a time fixed in the order;
(12) Ordering any party the court finds is responsible for domestic violence to attend and complete an abuser treatment program;
(13) Including additional prohibitions or requirements that the court deems necessary to protect any party or any minor child.  

DVPOs shall be for a fixed period of time, not to exceed two years.  The court may renew a protective order for a fixed period of time, upon a motion by the aggrieved party filed before the expiration of the current order and upon a showing
of good cause.  The defendant does not have to commit an act of domestic violence since the entry of the original order in order for you to get the order renewed.   However, a temporary custody award entered as part of a DVPO may not be renewed.    

You should keep a copy of the current DVPO with you at all times.      

If You're Accused of Domestic Violence

If you are accused of domestic violence and served with an exparte domestic violence protective order, you have several reasons to seek the assistance of an attorney.  If you are in the United States with a Visa or as a Permanent Resident Alien or desire to be a citizen of this country, you have even more
reasons to seek the assistance of an attorney.  

You may have already been evicted from your home and given only a few minutes to gather enough personal items to last you a few days.  You may have already lost possession of your vehicle and been ordered to surrender any firearms you own to
the local Sheriff.  You may have even lost custody and/or visitation of your children. Contrary to how it may seem, you do still have rights, both procedural and substantive.  By law, the court only has a few days within which to hold a hearing on the allegations made against you.  The court may not grant you
a continuance the day of court. As soon as possible after you are served, contact Marie Mobley to discuss representation.