How Do Family Law and Divorce Cases Work in North Carolina?
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Understanding The Family Law Case Process
Although no two cases are the same, below is a summary of some of the many steps and processes that take place during a family law case, and at Gary Britt Law, we always want to ensure that potential clients and clients have a full understanding of this process so that everyone can have a full understanding.
1. CONSULTATION
Scheduling the Consultation
When a prospective Potential client reaches out to my law office, I schedule a convenient time for the Potential client to have a consultation, provide the forms the Potential client needs to complete and request information the Potential client needs to provide. For those who prefer virtual meetings – and since a large portion of people find it easier to conduct consultations via video conferencing – I can also arrange virtual meetings for our consultation.
Initial Information Gathering
During the consultation, I start by asking the Potential client to share details about their family situation and the specific issues they are facing. Understanding their background and concerns helps me assess their needs accurately.
Listening and Analyzing
I actively listen to my potential client’s story and analyze the legal aspects of their case. This helps me gain a comprehensive understanding of the potential client’s unique circumstances and objectives.
Discussion of Legal Options
Based on the information provided, I explain the relevant issues and applicable laws that would affect the potential client’s case and discuss potential legal strategies to address the potential client’s concerns effectively.
Assessment of Strengths and Weaknesses
I evaluate the strengths and weaknesses of the case, discussing potential risks and opportunities for resolution. This analysis allows the potential client to better understand the case at hand and make more informed decisions.
Explanation of the Legal Process
I outline the legal procedures involved in handling a family law case, providing insights into potential timelines, court appearances, and the necessary documentation.
Fee Structure and Engagement
I am transparent about my fee structure, including consultation fees, retainer fees, and my hourly rates. Clarity in financial matters is crucial for potential clients, and I do my utmost to provide clarity in all facets of the attorney-client relationship.
Confidentiality and Professionalism
I emphasize the importance of confidentiality and assure potential clients of my commitment to maintaining professional ethics and attorney-potential client privilege.
Q&A and Addressing Concerns
I encourage potential clients to ask any questions they may have during the consultation. Addressing their concerns and providing clear answers is essential for building trust.
Decision-Making
After the consultation, potential clients can take their time to decide whether they want to retain my services as their family law attorney. There is no pressure, and I am here to support them regardless of their decision.
2. INTAKE
As an attorney handling a family law case, the information gathering process can involve the following steps:
Client Intake Form
I provide the new client with a comprehensive intake form requesting information needed to understand the client’s situation and concerns thoroughly, the client completes this at home allowing the client more time to provide in-depth information.
Personal Information
I collect personal information such as names, addresses, contact details, relationships, and employment details from the parties involved.
Marriage and Family History
I inquire about the marriage and family history, including any previous marriages and family dynamics that would be pertinent to the case.
Financial Documentation
The client and I work together to request and review financial documentation like tax returns, bank statements, and investment accounts to assess the parties’ financial situations accurately.
Child-Related Information
When children are involved, I work with the client gather detailed information about the children, including their names, ages, school information, and medical history.
Communication Records
After discussing the issues present, I often need the client to help produce / access relevant communication records, such as emails, texts, and social media interactions, between the parties so that I can review the same for information about the case.
Employment and Income Verification
I work with the client to identify the documents the client needs to provide to verify employment and income information.
Property and Assets
The client and I work together to identify and value marital assets, such as real estate, vehicles, investments, and personal belongings, for cases involving property division.
Expert Consultations
If necessary, I consult with experts like accountants, appraisers, or psychologists to gain better insights, information, and support for the case.
By meticulously gathering information, I can develop a strong legal strategy and provide well-informed advice to my client throughout the family law proceedings.
3. FILING
If the client is the one starting the lawsuit, then the client and I work together on the complaint, and if the client is answering another party’s complaint, then the client and I work together on the answer and counterclaim.
Complaint
This is the initial document outlining the legal claims and requests for relief.
The complaint typically includes essential details such as the names of the parties involved, the court’s jurisdiction, the relevant facts, and the specific legal claims being asserted (e.g., divorce, child custody, child support).
In North Carolina, the complaint may also include requests for temporary orders, such as temporary custody or support, to be addressed while the case is pending, and the complaint can include motions requesting that the Court order specific technical or procedural acts or processes as part of the case.
Once the complaint is drafted, the plaintiff must sign a sworn statement (verification) testifying to the complaint’s truthfulness, the complaint – along with several ancillary documents required by law and rules – is filed with the clerk of court and served on the defendant (the other party) in accordance with the North Carolina’s Rules of Civil Procedure.
Answer and Counterclaims
After receiving the complaint, the defendant has a specific period (thirty days, but it can be extended to sixty) to respond by filing an answer.
In the answer, the defendant admits or denies the allegations made in the complaint. The defendant may also assert any affirmative defenses and may raise counterclaims against the plaintiff.
Counterclaims are legal claims made by the defendant against the plaintiff. These counterclaims are relevant to the matter at hand and can seek various forms of relief, such as custody rights or property division.
The Defendant’s answer and counterclaim can also contain motions and requests for temporary hearings in North Carolina.
The defendant’s answer and counterclaims are filed with the court and served on the plaintiff or the Plaintiff’s attorney.
4. TEMPORARY HEARINGS
Some districts require the parties to undergo mediation before having any sort of hearing, even temporary hearings, but many districts, such as Cumberland County, allow for temporary issues like temporary restraining orders / preliminary injunctions, temporary custody, temporary child support, interim distribution, and post separation support to be held after the defendant has been served and before mediation.
In North Carolina family law cases, temporary hearings are legal proceedings held to address urgent and immediate issues that arise during a case and need prompt resolution before the final trial. These hearings were once known as “pendente lite” hearings, which means “pending the litigation.”
Purpose of Temporary Hearings
Temporary hearings are designed to address pressing matters while a family law case is pending. These matters can include temporary child custody, child support, spousal support (alimony), possession of the marital home, and other essential issues that need immediate attention.
Filing the Motion
To initiate a temporary hearing, one party (either the plaintiff or the defendant) files a motion with the court, requesting a hearing to address the specific temporary issues they want resolved. The motion must include a clear explanation of the issues and the relief sought. These motions are often found in the parties’ initial pleadings (the complaint or answer & counterclaim).
Notice to the Other Party
The moving party must serve the motion and supporting documents to the other party, giving the opposition sufficient notice of the upcoming temporary hearing. This ensures that both parties have an opportunity to prepare their arguments and evidence.
Use of Affidavits
Many districts – including jurisdiction – allow the use of affidavits instead of live testimony in temporary hearings. This is done to help expedite the matter and process the court’s heavy case load more efficiently.
Temporary Orders
During the temporary hearing, both parties can present evidence and arguments to support their positions. The judge will then make temporary orders based on the presented evidence, aiming to provide a fair and practical solution until the final trial.
Limited Scope
Temporary hearings have a narrower focus than the final trial. Their purpose is to address immediate concerns and provide stability for the parties and any children involved until the case reaches a resolution.
Effect on Final Trial
It’s important to note that the temporary orders issued during the hearing are not final determinations. They are only in effect until the final trial, where the court will make permanent decisions on the various family law issues.
Modification
If circumstances change after the temporary orders are issued and before the final determination of the case, either party may request a modification of these orders to reflect the new situation. This requires filing a motion with the court and demonstrating a change in circumstances, but this standard is lower than the standard needed to modify permanent orders. Furthermore, North Carolina courts have the right to modify temporary orders at any point while the litigation is pending.
Temporary hearings in North Carolina family law cases can play a crucial role in addressing immediate concerns and providing stability for the parties and their children during the legal process. As with any legal proceeding, seeking the guidance of an experienced family law attorney is highly recommended to effectively present one’s case and protect their rights during the temporary hearing.
6. CUSTODY MEDIATION
Applicability
N.C. Gen. Stat. § 7A-494 applies to family law cases involving child custody, visitation, or the modification of custody and visitation orders. It may also be applicable in cases related to child support if the child custody is also at issue.
Referral to Mediation
When a qualifying family law case is filed, the court automatically refers the parties to child custody mediation. The court will provide information about the mediation process, including the benefits and expectations, and at Gary Britt Law, I always take the time to review the process and develop a strategy with clients before mediation.
Mediation Session
The parties are required to attend a mediation session with a court-approved mediator. The mediator is a neutral third party trained in family law and conflict resolution. The parties attend the mediation but without counsel present.
Mediation Process
During the mediation session, the mediator facilitates communication between the parties, helping them explore potential solutions for child custody and visitation. The mediator does not make decisions but encourages the parties to reach a mutually agreeable resolution.
Focus on Child’s Best Interests
The mediator encourages the parties to consider the child’s needs and well-being when discussing custody arrangements.
Mediation Outcome
If the parties reach an agreement during the mediation session, the mediator will draft a written custody agreement. Both parties and their attorneys review the agreement to ensure it accurately reflects their intentions, and I take the time to go through the agreement in detail to advise the client about any possible issues.
Court Approval
Once the custody agreement is finalized and signed by the parties, it is submitted to the court for approval. The court will review the agreement to ensure it meets the child’s best interests. If approved, the custody agreement becomes part of the final court order.
Contested Hearings
If the parties are unable to reach an agreement through mediation, the case will be scheduled for trial, where a judge will make the final custody determination based on the evidence presented.
Exceptions
There are limited exceptions to mandatory mediation, such as cases involving domestic violence, child abuse, or situations where mediation would be deemed inappropriate or unsafe for any party.
7. SCHEDULING / PRE-TRIAL ORDER
In North Carolina family law cases – like most litigation – discovery scheduling orders and pre-trial orders are essential tools used to streamline the legal process, set deadlines, and ensure a fair and efficient process to achieve the resolution of the case.
Discovery Scheduling Orders
- Discovery refers to the process of gathering evidence and information relevant to the case. A discovery scheduling order is a court-issued document that sets forth the timeline and guidelines for conducting discovery.
- The order outlines deadlines for completing specific discovery tasks, such as serving interrogatories (written questions), requests for production of documents, and conducting depositions.
- It may also address the exchange of expert witness information, deadlines for expert reports and appraisals, and other discovery-related matters.
- The purpose of a discovery scheduling order is to ensure that both parties have adequate time to gather and review evidence, preventing unnecessary delays and ensuring a fair and efficient discovery process.
By using discovery scheduling orders, parties can conduct discovery in an organized and timely manner, preventing undue delays and ensuring that both sides have equal opportunities to access relevant evidence.
Pre-Trial Orders
Pre-trial orders are issued by the court before the final trial of the family law case. These orders provide crucial instructions and set the framework for the trial proceedings.
- Pre-trial orders typically address various aspects of the trial, such as the date and time of the trial, the issues to be decided, the estimated length of the trial, and any limitations on evidence and witnesses.
- They may also address the submission of trial briefs, witness lists, exhibit lists, and any other documents that parties must provide before the trial.
- The purpose of pre-trial orders is to ensure that the trial proceeds smoothly, that both parties are aware of the trial’s expectations, and that the court has the necessary information to conduct the trial efficiently.
Pre-trial orders facilitate a well-prepared and efficient trial process, promoting the effective presentation of evidence and arguments, ultimately aiding the court in making informed decisions on the family law matter at hand.
8. DISCOVERY
The discovery process in North Carolina family law cases – as with all other forms of civil litigation – allows parties to obtain relevant information and evidence from each other.
The discovery process in North Carolina family law cases is essential for parties to obtain relevant information, evidence, and admissions from each other to prepare their cases thoroughly. It encourages transparency and facilitates a fair and informed resolution of the legal matters involved. However, parties must adhere to the rules and guidelines governing discovery to ensure a smooth and efficient process.
General Provisions Governing Discovery
Rule 26 sets the foundation for the discovery process. It requires parties to disclose relevant information and documents. It also allows for the discovery of expert witnesses and their opinions. Rule 26 emphasizes the importance of open communication and cooperation between parties during the discovery phase.
Depositions
Rule 30 allows parties to take depositions of witnesses and parties upon oral examination. Depositions are recorded testimonies, given under oath, and can be used to discover new information and evidence and/or for evidence to be used during trial. Rule 30 governs the process and procedures for conducting depositions.
Interrogatories to Parties
Rule 33 enables parties to send written interrogatories, or questions, to each other. The responding party must provide written answers under oath. Interrogatories help clarify issues and gather information relevant to the case.
Requests for Production
Pursuant to Rule 34, parties may request the production of documents, electronically stored information, and things / tangible items. Rule 34 allows for inspection and copying of these objects. This rule facilitates the exchange of relevant evidence and information between parties.
Physical and Mental Examinations of Persons
Rule 35 permits a party to request a physical or mental examination of another person when the individual’s physical or mental condition is at issue in the case. The examination must be conducted by a qualified expert.
Requests for Admission
Rule 36 allows parties to serve requests for admission on each other. These requests ask the opposing party to admit or deny specific statements of fact. Admissions can simplify trial preparation and narrow the issues in dispute.
Objections
In North Carolina, a party may object to certain types of discovery for limited reasons under the North Carolina Rules of Civil Procedure. Here’s a brief explanation of the common objections and their respective reasons:
- Relevance: A party may object to a discovery request if the information sought is not relevant to the issues in the case. The objection asserts that the requested information does not have any bearing on the claims or defenses presented.
- Privilege: A party may assert privilege as an objection when the requested information is protected by a legal privilege, such as attorney-client privilege or doctor-patient confidentiality. Privileged information is generally not subject to disclosure.
- Overbreadth: An objection based on overbreadth contends that the discovery request is too broad and seeks information that is not reasonably proportional to the needs of the case.
- Undue Burden: A party may object if the discovery request would cause an undue burden, expense, or harassment. This objection is commonly raised when complying with the request would be excessively costly or time-consuming.
- Confidentiality: In cases involving sensitive or confidential information, a party may object and seek a protective order to limit the dissemination of the requested information to only those with a legitimate interest in the case.
- Work Product: An objection based on work product protection applies to materials prepared in anticipation of litigation. Such materials are shielded from discovery to preserve the attorney’s mental impressions and legal strategy.
- Trade Secrets: If the requested information contains trade secrets or proprietary information, a party may object to protect their competitive advantage.
When objecting to discovery, the objecting party must provide specific reasons for each objection. The burden is on the objecting party to explain why the information should not be disclosed. If the parties cannot resolve the objections through negotiation, they may seek court intervention to resolve the disputes and determine whether the objections are valid.
It’s crucial for parties to understand their rights and obligations under the North Carolina Rules of Civil Procedure to navigate the discovery process effectively and protect their interests during the litigation. Seeking legal guidance from an experienced attorney can be invaluable in handling discovery objections and ensuring compliance with the rules.
9. FINANCIAL MEDIATION
In family law cases involving financial matters, such as property division, spousal support, and child support, mediation plays a vital role. Pursuant to NC Gen Stat § 7A-38.4A(c), judges can order that parties are required to participate in mediation before going to court for resolution.
During mediation, a neutral mediator, often chosen by the parties or appointed by the court, facilitates discussions between you and your spouse, but unlike custody mediation, attorneys are present with the parties. The mediator’s goal is to help you reach a mutually agreeable financial settlement without the need for a costly and time-consuming court battle.
At Gary Britt Law, I understand the emotional and financial complexities of family law matters. I will work closely with you to prepare for mediation, ensuring your interests are protected and your voice is heard during negotiations.
Mediation offers a confidential and less adversarial environment, allowing you to explore creative solutions that best suit your family’s unique needs. With compassionate support and legal knowledge, I work hard to achieve a fair and equitable financial settlement that secures your future.
My commitment is to provide you with personalized attention and practical advice every step of the way. When you choose Gary Britt Law, you’re choosing a dedicated partner for navigating the family law process in North Carolina.
10. TRIALS
When family law cases cannot be resolved through mediation or negotiation, the cases proceed to a trial. During the trial, evidence, and testimony ais presented to help the court determine the outcome.
At Gary Britt Law, I will diligently prepare your case, gathering crucial evidence, and crafting persuasive arguments to help achieve your goals. I will guide you through the entire trial process, doing my best to ensure your rights and interests are protected at every stage.
During the trial, both parties present their respective cases, and witnesses may be called to testify.
My compassionate support, legal knowledge and experience will be with you every step of the way. You can trust Gary Britt Law to be your partner in navigating your family law case in Cumberland, Hoke, Harnett, Sampson, Bladen, Moore, and Robeson Counties.
While it is always my sincere hope that a client’s matters can be resolved without the cost and stress of trial, clients can rest assured that at Gary Britt Law, I am always keeping an eye towards preparing for trial so that I can vigorously protect my clients interests and that while I cannot guarantee results or outcomes I will guarantee that my clients will receive complete honesty from me, dedication, attention to detail and a willingness to fight to protect my clients within the bounds of the law.