You’ve heard it before: think before you text, tweet, or post. With all of the social media marvels out there, people are communicating like never before. I’ll admit, I’m a millennial, and we millennials sure love to text, tweet, post, and blog. Documenting every thought, emotion, and life event, from the mundane to the magnificent, has become second nature to many.
More and more, attorneys are seeing cases where these types of messages play a key role. One party wants to use these types of communications in court to prove or disprove some element or theory of its case. In fact, this issue is becoming so prevalent that in July, the North Carolina State Bar adopted an ethics opinion which appears to impose a duty on a lawyer to advise his or her clients about social media if that media contains information that may be relevant or material to the client’s representation. Certainly, the limits and particular application of this rule are yet to be determined.
In the family law context, social media is frequently a topic of concern among clients. People tend to forget that what they put out there, whether it’s a post, message, tweet, photo, or other communication, can be highly visible. These communications are often relevant to the claims or defenses in family law matters, and the other party (spouse, other parent, etc.) might have the ability to view your social media pages (unless you are a privacy setting whiz, and most of us are just not that vigilant). So, here’s my personal opinion when it comes to social media… heed your mother’s advice, and if you don’t have anything nice to say, don’t say anything at all!
Mediation can play a very important role in a child custody case. If you and your spouse have children and decide to separate, it will be important for you to come up with some form of co-parenting arrangement. When parents separate, simple tasks such as pick-up and drop-off from school, and running to and from extracurricular activities may become difficult to coordinate. Although these might seem like trivial issues, these are the types of things that can cause major hassles down the line. If you and your spouse are able to make suitable arrangements amongst yourselves, you may save yourself not only stress, but also expense.
Remember that you and whatever attorney you decide to work with are faced with a difficult task when you come in the door with a conflict involving custody. The fact is, in most cases, you and the attorney are strangers. The attorney doesn’t know anything about your children, your spouse, or your family dynamic, and while every attorney must work diligently at the outset to gather the relevant facts in a particular case, he or she is not on the front lines with you every day. In many cases, the specifics of any custody arrangement are best left to you and the other parent. That is where custody mediation plays a key role.
People often have concerns about this mediation process: Here is short list of responses to some of the most common questions that come up with regard to the custody mediation process:
- Do I have to go along with what the mediator thinks is the best parenting arrangement?
Answer: Of course not. While I certainly encourage (with emphasis) clients to defer to what the mediator is recommending in a particular case (after all, this person is a mediator for a reason), you are not bound by what the mediator recommends or proposes. If you do not agree with a proposed Parenting Agreement you are free to walk away from the mediation process. However, if mediation fails and you and the other party cannot resolve things outside of court, you may end up in a full blown custody trial, in which case you and the other parent lose control over the outcome.
- What is the result of reaching a Parenting Agreement during mediation?
Answer: The Parenting Agreement will be submitted to the
court for approval by the judge. Once signed by the judge, the Parenting Agreement becomes an order of the court, meaning that all parties must comply with the terms as written, no ifs, ands, or buts about it.
- What if the circumstances change with our children such that complying with the terms of the proposed order becomes unreasonable or overly burdensome?
Answer: The terms of a Parenting Agreement can be modified when you and the other party can agree to return to mediation. If for some reason, the other parent will not agree to return to mediation, you can usually seek the assistance of the court in modifying the current arrangement if you are able to show that there is a substantial change of circumstances affecting the welfare of the minor children. You will usually need to file a motion explaining such circumstances. As you might expect, it is certainly easier and more cost effective for you and the other parent to return to mediation, rather than proceeding in court.
Last month, we discussed one possible avenue for resolving the issues that arise when separating from your spouse: a contractual document often referred to as “Separation and Property Settlement Agreement.” As with any contract, the parties to a separation agreement must mutually agree to its terms. It may be the case that two spouses cannot even bear to sit in the same room with one another, let alone come together in mutual agreement.
In these cases, a course of action will often depend on whether one spouse will agree to move out of the marital residence. Often, one spouse will voluntarily agree to vacate the residence. Once separated, one of the spouses can then initiate a lawsuit asking the court to equitably divide the marital property. A spouse may assert several claims at once, including claims for child custody, child support, attorney’s fees, post-separation support and alimony (if the circumstances warrant), all in conjunction with the property distribution claim.
In the case where one spouse refuses to move out and you are subjected to certain cruelties at the hand of your spouse (list of grounds for Divorce from Bed & Board are set out in N.C.G.S. § 50-7), the first filing with the court can include a claim for Divorce from Bed and Board. Filing this type of complaint is your way of asking the court to determine who should move out of the marital residence and who should stay. The court will take into consideration the grounds for Divorce from Bed and Board as they are set forth in the complaint. A spouse may join a claim for Divorce from Bed and Board with other claims for equitable distribution, child custody, child support, alimony, and post-separation support if the circumstances warrant.
The claims discussed above are complicated in nature. Rarely are any two cases identical, and your ability to bring certain claims or defenses will vary according to the particular facts of your case. This is why it is important to consult with an attorney if you are confronted with any of these issues, especially when you and your spouse just can’t get along!
Stay tuned for a new blog topic next month!
Many people still imagine the separation process as an award-winning Hollywood drama, complete with a good guy, a villain, and a plot fit for the likes of reality television. Don’t get me wrong; these cases do exist! But more often than not, the story is not so salacious.
If the blood is not so bad between you and your spouse, it may be possible to reach an agreement, often called a “Separation and Property Settlement Agreement.” Basically, this allows you to contract with your spouse to distribute your marital assets and debts. One party will promise to reside separate and apart from the other as consideration for the contract. These types of agreements can also address issues such as child custody, visitation, and child support.
It may be the case that you and your spouse can come together to resolve these issues by way of agreement, and more often than not, your collaborative effort will save you money, time, and hopefully, stress. Speaking to the logistics in these situations, one spouse will often retain an attorney to assist in the preparation of the agreement itself. If one attorney prepares the agreement, the other spouse should be given the opportunity to consult with his or her own attorney. Once given this opportunity, both spouses can simply sign the agreement before a notary, and, if properly drafted, the document becomes a binding contract between you and your spouse.
As I said at the beginning, not all cases can be addressed in this manner: So what happens if you and your spouse just can’t get along? Find out in our next blog…stay tuned!