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Divorce and Collaborative Law

We Are Getting Divorced. Now What?
The unthinkable has happened. You and your spouse have decided to divorce. Whether it is a mutual decision or not, divorce can be a time fraught with emotion. Sadness, anger, grief, fear…all of these are normal emotions that you may feel. Unfortunately, just at a time when you may be experiencing such stress, there are many logistical questions to answer.

How do you get a divorce in North Carolina?
Is North Carolina a community property state?
Do you have to go to court to get a divorce?
How can you get spousal support?
How and when will child support be received?
How will you create a new life financially post-divorce?

First, know that even though divorce is the severing of a legal bond, no two cases are exactly the same. What worked for a friend or family member may not be the appropriate approach for you. Therefore, the first step is to put together a team that can assist you through these tumultuous times and that will help you to transition into the next phase of your life. One of the best ways to do this is to work with a lawyer that has been certified as a specialist in family law.

I'm Getting Divorced and I Want the House!
Family law attorneys are often told to “fight for the house!” Thousands of dollars may be spent on fighting for an asset that may result in a financial liability. Is this really the best course of action for you?

Emotional ties to the marital home are often strong. Parents may worry that moving children into a new home will be detrimental, especially during the emotional strain of a divorce.

However, determining if you will remain in the marital home must be a financial decision and not an emotion decision. Can you afford the rent or mortgage? Calculate the associated costs, including insurance, maintenance and upkeep, utility bills and the like. Those day-to-day costs will not change. Will you be able to afford the house when alimony and/or child support ends? What will your financial situation look like in one year? Five years?

If retaining the marital home does not make financial or practical sense, and if you will not be able to afford the ongoing cost without financial strain, it may make sense to thoughtfully examine other options. It is imperative that prior to moving out of the residence, seek legal advice.

8 Reasons to Reconsider Moving Out of the Marital Home
Apartments are cheaper than houses, but paying for both an apartment and a house is the most expensive choice of all!
1. You still owe the mortgage payments (you may be paying for your spouse to live in the house).
2. In addition to paying for the costs at the marital home, you may have your own costs after moving out (rent, utilities, etc.)
3. You may impair your claim for spousal support by decreasing your expenses.
4. You may harm your defenses against paying spousal support – you reduce your needs/expenses which is a determining factor for support or reducing support.
5. Leaving the home removes a potential bargaining chip in negotiations.
6. Getting evidence which may be in the house and you now are not may be difficult.
7. Sets date of separation for valuation purposes.
8. Typically you cannot return to the residence after separation. Although this may be an emotionally difficult time, it is best to consult a lawyer specializing in family law before moving out of the marital home.
Is Collaborative Law the Best Choice for My Divorce?

You may have heard about collaborative divorce. It is becoming a desirable choice for many couples who wish to divorce – but is it right for you?

What is Collaborative Law?

Collaborative law is an excellent alternative to having your case resolved in Court. This process resolves family law issues through settlement negotiations, but it has the advantage of removing the threat of litigation. How does collaborative law avoid costly and painful litigation? It is important to understand that, under the collaborative law process, all parties and their attorneys voluntarily exchange information and are committed to full, honest, and open disclosure of all relevant facts. Experts (accountants, counselors, or other professionals who may be deemed necessary) are jointly retained to ensure neutrality and to cut down on expenses. Therefore, if you and your spouse are able to communicate openly as you move toward divorce, collaborative law may be a good choice for you.

What is the Collaborative Process?

The primary method of progressing toward a settlement through the Collaborative Law process is the use of four way meetings attended by both parties and their attorneys. Usually each case begins with a four way meeting, at which the participants sign a Collaborative Law Agreement and identify documents that need to be exchanged. Once this Collaborative Law Agreement is signed any Court proceeding is immediately halted and everyone agrees to handle the matter out of Court.This encourages the parties to settle their case without the emotionally painful and public nature of a trial. Then, additional joint conferences are held as needed. Through the Collaborative Law Process, the parties are often able to settle their case without ever setting foot in Court. Additionally, the parties are able to be active participants in the resolution of their case. This will have untold intangible benefits for years to come.

What are the Advantages of Collaborative Law?

Collaborative divorce not only has economic advantages, but it also can spare your family the tremendous emotional distress that often accompanies litigation. It has added benefits in custody cases because it limits the strain on the parents’ relationship and allows you to more effectively co-parent with less antagonism right from the beginning. 

8 Reasons to Choose a Collaborative Law Divorce

Collaborative law requires open communication between you, your current spouse and the lawyers you retain. The long-term benefits to you and your family are one of many reasons why so many people are choosing collaborative law divorces. Here are 8 reasons to choose a collaborative law divorce.

1. Collaborative Law Divorce is Client Controlled
You are your spouse control the process and the outcome. Your destiny is in your hands rather than in those of a stranger – a judge.

2. Collaborative Law Divorce is Client Centered
You and your spouse are a vital part of the settlement team. You and your lawyer will work with your spouse and his or her lawyer to settle your case in an efficient and respectful manner that meets both parties’ needs.

3. Collaborative Law Divorce is Cooperative
Both parties are counseled and supported by their own attorneys as they work cooperatively with the other side to resolve issues.

4. Collaborative Law Divorce is Streamlined
The process requires voluntary disclosure, eliminating formal methods of obtaining information and procedural delays.

5. Collaborative Law Divorce is Creative
You and your spouse are able to tailor the terms of your settlement to meet the needs of your family. Remember, divorce is as unique and individual as you are. What works for another family may not work for yours. Collaborative law gives you the opportunity to make sure your divorce is tailored to your own family needs.

6. Collaborative Law Means You Don’t Have to Go to Court
Everyone can focus on reaching a settlement without the recurring threat of going to court, the burden of the court’s timetable, or the lack of privacy that comes with surrendering the details of the clients’ private lives to the public record.

7. Collaborative Law is Family-Centered
Collaborative law emphasizes co-parenting and time-sharing arrangements that best meet the needs of parents and children. It means you don’t have to rely on arbitrary schedule created and imposed by a judge who doesn’t know you or your family.

8. Collaborative Law Provides Good Guidance
In collaborative law you have the comfort of having independent legal advice from an experienced lawyer, but you also have the benefit of using neutral experts that are shared by the parties.

What Happens if Collaborative Law Doesn’t Work for My Divorce?

This is an excellent question, and one we hear often. Collaborative lawyers are committed to exploring various ways to achieve a fair and balanced settlement. If you can’t reach an agreement no matter how hard you try, you can choose to use a neutral mediator or arbitrator to facilitate settlement.

What Happens if We Still Can’t Reach a Divorce Settlement?

At the beginning of the Collaborative Law Process, both the attorneys and the clients commit to reaching an out-of-court settlement, whether through informal negotiations, mediation, or arbitration. If the process is unsuccessful, then the collaborative lawyers must withdraw from the case and assist their clients in retaining trial attorneys. This requirement ensures that both spouses and their attorneys are equally motivated to work as hard as necessary to avoid a breakdown in communication or in the settlement process.

Will I Lose Insurance During My Divorce?
During the stress of determining division of assets, child support, and alimony, one question that can be overlooked is that of insurance coverage. Are you covered through health insurance held by your spouse? What about auto insurance, life, or long term care disability? Do you know what type of coverage you have, and what the policy limitations and coverage terms and conditions are? Have you changed your beneficiaries on your life insurance policies?

Sadly, sometimes the spouse holding the insurance either ceases payment during the divorce process or changes the type of coverage held. A good rule of thumb is to make sure you get receipts for payments, and check that the coverage hasn’t changed and is still in place by speaking with your carrier. You may wish to verify insurance coverage on a monthly basis until your divorce is finalized; if insurance is canceled because the premiums have not been paid, often it is difficult to get it reinstated.

How Will my Insurance Coverage Change Post Divorce?

What insurance policies will you need to replace or change after your divorce? Are you eligible for COBRA? You may wish to separate out some policies. Remember that insurance is usually more than just health or auto – include any life, disability, and long term care insurance in your planning. How much will it cost to continue the policies on your own? These costs may influence what you need during a divorce settlement.

If you have dependent children, and are reliant on child support and alimony, you may want to ensure that your spouse maintains both life insurance and disability insurance.

Should I Remove My Ex-Spouse From My Insurance Policy?

If you are carrying health insurance on your spouse, you should not rush to cancel the policy. You may have a responsibility under COBRA to notify your spouse before canceling the policy. Also, in North Carolina, hospitals and doctors may attempt to hold you liable for medical bills incurred by your spouse. There are very limited ways to protect yourself when this happens. Do not get caught in this minefield. Speak with an attorney before canceling any insurance policy.

What should I do about my Facebook/Twitter account now that I am involved in litigation?

Social media sites such as Facebook, Twitter, YouTube, Google+ and Myspace have increasingly become an easy mechanism for individuals to express their opinions on a wide range of topics. All too often, these topics include the individual’s personal life. While sharing your routine, day-to-day activities to the “world” often is harmless, clients run into trouble when they divulge or share information that relates both directly or indirectly to a pending or soon to be pending legal matter. Expect that whatever you write or post to your social media account, or have written or posted in the past on these sites, will be found by the opposing party or the opposing parties’ attorney.

Additionally, the use of electronic surveillance of these types of social media sites has become increasingly prevalent. The opposing party hopes to discover information that could embarrass, humiliate or harm you. They will look for pictures or comments by your or your “friends” that can then be taken out of context to harm your case. Further, deleting these posts, comments or pictures from your profile often does not completely remove the file from your hard drive or the account. Due to the risk associated with using these social media sites, take precautions before using your account in the future and strongly consider suspending or deleting your accounts until your legal case is concluded.

Estate Planning

I don't have a big estate - do I need an Estate Plan?
Absolutely. One of the most common mistakes people make is assuming that their estate is too small to require any type of estate planning. The truth is, it doesn’t matter how large or small your net worth is, it is vital to have an estate plan.
What is an Estate Plan?
An estate plan determines what happens to you if you become incapacitated and what happens at your death.  Actually, you already have an estate plan, whether you know it or not. Deciding to have a will or not, how you title your assets, naming beneficiaries (or not) on life insurance or IRAs are all part of your estate plan.  The question for you is, do you want to control and understand any or all of this? Your personal circumstances and your goals determine how simple or complex your plan will be. A typical estate plan usually contains a will, a power of attorney, health care power of attorney, and a living will.  Some estate plans may include trusts, too. You should also ask your estate planning attorney how jointly owned assets and beneficiary type assets should be arranged to coordinate with the rest of your estate plan.
I’m young; why do I need a will?
Most individuals start to think about making a will as they age. However, every adult, no matter how young, needs to have a will, especially if there are children or any type of property or assets. If you die without a will, the state of North Carolina will decide what to do with your estate. North Carolina has several laws that govern estate division if someone dies without a will. Those laws probably will not reflect your wishes. For example, if you are married and do not have any children, your parents will receive half of your personal property and real estate. This could leave your spouse in a very difficult financial position. Or, if you are unmarried and have no living biological relatives, North Carolina becomes the beneficiary of your assets.If you don’t have a will, please call an estate planning attorney who can work with you to create a valid will to ensure your family and your assets are protected. During the conversation, inquire about designating someone as your power of attorney in case of your incapacitation.
Why Creating a Family Elder Plan Now is Important

This may be one of the toughest conversations your family will ever have. Planning for the future when we are planning for happy events – marriages, children, grandchildren – is easy, even joyful. Planning the future that may hold sickness and uncertainty is not so easy, and often it becomes a chore that families put off.

Some individuals get as far as setting up a health care medical directive (especially if there is a chronic, long-term illness) but don’t take the time to complete the other legal documents necessary to avert a crisis that requires immediate attention. A family member may no longer be able to care for themselves, or may not longer be capable of managing their financial and legal affairs. Assets, from large to small, may be in dispute among family members. Tensions may run high. Sadly, you or your family may be in the position of frantically trying to find legal documents, or set up medical care and how to pay for it at a time when emotions are running high and time is of the essence.

Proactively planning for your future is one of the best gifts you can give your family. Remember – if you don’t do it, the State of North Carolina will.

First Steps to Creating an Elder Plan

You’ve taken the first step – you are ready to think about creating your elder plan. What does that mean exactly? A comprehensive elder plan can include trusts, powers of attorney, living wills or health-care powers of attorney. You may want to use more complex techniques to avoid probate, minimize estate taxes, or protect your assets from nursing home expenses. It should also clearly include your health-care preferences and medical directives. Your elder plan should contain a customized combination of the documents that are right for you. Your elder care attorney will work closely with you to determine what fits you and your needs.

Real Estate

What are your attorney fees?
Attorney fees can vary in each real estate transaction depending on the services provided. The typical real estate transaction includes the preparation of your lender’s loan package, your Settlement Statement, and the recording of your Deed and Deed of Trust. In some cases, we will be required to resolve title issues or release liens in order to provide marketable title for your property or you may require a Power of Attorney or other miscellaneous document preparation. Please contact our office at 704.553.8221 and speak with a real estate paralegal to discuss fees applicable to your settlement and closing.
Is there a difference in fees between a residential and commercial closing??
Yes. Commercial closings are handled on an hourly fee basis. Please contact our real estate department for appropriate fees.
What is the difference between closing and settlement?
Settlement is the execution and delivery of all of the documents required to complete the real estate transaction. Documents you can expect to sign at settlement include: your loan package documents if you are financing the purchase of your property, and your deed of trust. Sellers will sign the deed.
Closing is the completion of the transfer of title to the property. After settlement, the lending institution, if any, will authorize the release of funds. Additionally, we perform a title update to ensure that no liens or other encumbrances. Finally, the deed and deed of trust will be recorded in the county of record.
When will I receive the funds due to me from the real estate transaction?
Any funds due to a buyer, seller, real estate agent, or Realtor® are disbursed upon approval from the buyer’s lending institution and recording of the deed and deed of trust.
When can I schedule my settlement and closing?
Often, in our busy world, our schedules are difficult and demanding. While most closings have only minor or no issues, some have more complex or major issues that require much more time than anticipated. Therefore, it is important to carefully consider the process of settlement and closing when scheduling your closing date and time. The property is not legally transferred to a buyer until “closing.” Closing includes the disbursement of funds and recording of the deed and deed of trust. This means that the property is not yours until recording; you will not receive the keys and will not be able to move your personal property into the home. While most counties in the area offer e-filing for recordation of documents, some do not. Generally, the latest that you should schedule a closing for same-day move-in is 1 pm. If circumstances allow, it is best to close the day prior to your scheduled move-in date.
Can I bring a personal check for the funds?
No. Funds for closing should be wired to our trust account. When you receive a copy of your Settlement Statement (HUD-1), the funds due from you will be provided. In the event that there is a delay in the Settlement Statement, your may obtain an estimated dollar amount from your lender. Excess funds will be reimbursed when the property is closed and disbursement is authorized.
My moving van is sitting in the driveway. Can I put my stuff in the garage?
The property is not legally transferred to a buyer until “closing.” Closing includes the disbursement of funds and recording of the deed and deed of trust. This means that the property is not yours until recording; you will not receive the keys and will not be able to move your personal property into the home.
In some instances, a buyer and seller can execute an addendum to their Offer to Purchase and Contract to allow possession of property prior to or after closing. If this is the case, please plan to make arrangements well in advance of your closing.
I was single when I purchased my home. Now I am selling it, and I am married. Does my spouse have to sign anything?

Yes! Even if your new spouse is not on the deed, deed of trust, or promissory note. When you married, your spouse earned a marital interest in the property. Because the sale of the home adversely affects that interest, their consent is required.

Title Insurance
a. Why is it required?
Title insurance is a type of insurance policy on the marketability of your title. When you enter into a contract to purchase real estate, the settlement agent (attorney) will conduct a title search. The title search is a process where each link between previous buyers and sellers is investigated to ensure that there are no liens, judgments, or other encumbrances or defects on the property that would adversely affect your interest in the property or the interest of your mortgage company in the property.
b. What does it cover?
There are two types of title insurance policies: Owner’s policy and Lender’s policy. The owner’s policy insures the status of the owner’s title and the marketability of that title. The lender’s policy insures that the lender is secured as the first lien on the property. This means that in the event of default, if the lender must move forward with a foreclosure proceeding, they are to be paid first.
c. How much does it cost?
The owner’s policy should be calculated on the purchase price of the property. There is a one-time premium on the policy that can vary based on whether there is an existing title policy on which we can reasonably rely. Please discuss the limitations to title insurance policies with your settlement attorney.

The lender’s policy is calculated on the amount of your mortgage.

Do I need a lawyer to close my real estate transaction?
You should consider the advantages of using a qualified attorney versus a settlement services company. There are some convenience factors associated with a settlement services company. However, the laws do not change regarding the transfer of title to property. Additionally, a settlement services agent cannot answer questions regarding your legal rights under any of the documents provided to you during settlement.
I am selling/buying a home. Can I have my own attorney?
Absolutely. You have a right to individual representation. A closing attorney generally represents you in ensuring that you obtain good and marketable title to your property. The closing attorney can advise you on legal questions concerning title to your property, title insurance, and the covenants and conditions of your loan documentation. However, the closing attorney does not represent you with respect to the terms of your loan agreement with your lender. Additionally, the closing attorney usually will not represent either the buyer or seller in a post-closing dispute.
Can I have my spouse sign for me?
If you are financing your home, you will be required to obtain lender approval for the use of a Power of Attorney. We can draft the Power of Attorney for you. Contact your paralegal for the cost of this service.
Should I pay for a survey?
Yes. A survey is a very important step in the purchase of any real estate. A survey may reveal any easements, encroachments, rights of way or other issues that are important to the use of your property. Generally a lender will require a survey. In some cases, a lender will not require a survey, but their lender title insurance policy will typically cover any loss resulting from a condition that would have been reflected on an accurate survey. Your title insurance policy will not. A survey is not required if you are paying cash for your real estate. Please discuss this decision with your settlement attorney.
How should I take title to my property?
There are a variety of factors you should consider when determining how to take title to property, such as liability in a commercial transaction or marital rights in a residential purchase. If this is a concern for you, please contact one of our real estate attorneys for advice.
What are some factors to consider during my due diligence period?
In a residential real estate transaction, you should consider the following items: a home inspection conducted by a licensed home inspector; loan qualification; Covenants, Conditions, and Restrictions of the community; Homeowner Association management, dues, and financials.
In a commercial real estate transaction, you should consider the following items: Investigation of the environmental conditions of the property including a Phase I assessment, asbestos survey, lead inspection, determination of whether the property is in a flood zone, the presence of endangered species, whether wetlands are located on the property, and geotechnical investigations; code compliance and physical condition of any structures on the property; accessibility of the property, such as handicap access, parking, access to a roadway; any current or proposed zoning; any assignments of leases; and obtaining an ALTA survey.
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