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Cheshire Parker Raleigh Family Law Attorneys named 2017 Top 100 North Carolina Super Lawyers and Rising Star

We are pleased to announce that Cheshire Parker Schneider & Bryan Raleigh NC Family Law Attorneys  John Parker, Kimberly Bryan and David Holm have been named 2017 North Carolina Super Lawyers.

Family Law Attorneys John Parker and Kimberly Bryan were also named 2017 Top 100 North Carolina Super Lawyers.

CPSB is pleased to announce that Family Law Attorney Amy Britt has been named 2017 North Carolina Rising Star, six years in a row.

Congratulations to this years recipients!

 

 

 

Cheshire Parker Raleigh NC Family Law Attorneys named 2016 Super Lawyers and Rising Star

We are honored that Raleigh Family Law Attorneys John Parker, and Kimberly Bryan, have again been named Super Lawyers by Superlawyers.com.     We are proud that Kimberly Bryan has been named to the North Carolina Top 50 Women Super Lawyers two years in a row.  In addition, Raleigh Family Law Attorney Amy Britt was named 2016 North Carolina Rising Star.

Super Lawyers explains the selection process as follows:

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who attain a high degree of peer recognition and professional achievement.  The selection process includes independent research, peer nominations and peer evaluations. 

Rising Stars explains the selection process as follows:

The selection process for the Rising Stars list is the same as the Super Lawyers selection process, with one exception: to be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger or in practice for 10 years or less.

Congratulations to this years recipientsFor more information regarding North Carolina’s laws and requirements, contact one of the Raleigh Family Law Attorneys at Cheshire Parker Schneider & Bryan for a consultation today.

 

 

 

 

Same-Sex Marriage and Divorce

The United States Supreme Court legalized same sex marriage in a landmark decision, and since then, many states have made changes to their existing marriage laws to accommodate this decision. With the legalization of marriage comes the legalization of same sex divorce, which has created challenges for lawmakers and attorneys nationwide as they determine how to best handle the split of a same sex couple.

North Carolina Criteria

In North Carolina, all divorcing couples are subject to the same laws. At least one person must have lived in North Carolina for at least six months, regardless of where the marriage license was issued. Each couple must go through one year of separation before they can file a petition for divorce, and at the time of separation, at least one person must have intended to make a permanent break in the marriage.  However, you may resolve all other issues arising out of your marriage prior to your divorce.

Alimony Determinations

It’s often difficult to determine who is the supporting spouse in today’s society, particularly where both partners hold jobs and contribute to the financial wellbeing of their household. If you are considered the supporting spouse, you may be required to pay alimony, so long as your ex-spouse is considered to be dependent and so long as there is the ability to pay alimony.

It is possible to resolve your separation without an alimony obligation if both parties agree in a Consent Order or a Separation Agreement.   Additionally, some couples may have stipulations written into their prenuptial agreements that excuse each spouse from financial obligations to the other in case of a divorce.

Division of Property

In North Carolina, the marital dissolution laws allow the court to divide any property belonging to a divorcing couple if the couple cannot reach an agreement on their own. Although many people believe that a division of marital assets and debts is performed as an equal split between two spouses, this is not always the case, but it is the starting presumption.

Also, some property may have been inherited or given to only one spouse by a third party or some property may have mixed characteristics, as can often be the case with retirement accounts if they have been contributed to before and/or after the marriage.  Debt may not be marital if it was not incurred for a marital purpose.  Additionally, it may not be feasible, for economic reasons, legal reasons or business reasons, to divide certain items of property, such as a family business.  In those cases, it may be more proper to offset the value of the business with other assets.

How is Custody Decided?

There is no presumption in North Carolina as to who shall be the primary custodian of a child.  Instead, North Carolina uses a best interest determination between two legal parents.  As a same –sex couple the landscape is still a bit complicated.  If both of your names are on the child’s birth certificate, the same legal standard will apply in your custodial determination.

If the child is biologically your partner’s child, you will need to consider a step-parent adoption to be on the same legal footing as the biological parent.  If you do not have your name on the birth certificate, there are precedent cases in North Carolina that may apply to your facts and allow you to seek custody/visitation based on the best interest of the child.  This area of law can be very complicated, so please seek legal counsel prior to separating.

Call An Attorney

If you are considering divorcing your spouse, you need the help of a divorce attorney. At Cheshire, Parker, Schneider, and Bryan, our Raleigh divorce lawyers represent divorcing same-sex couples in North Carolina.

 

Non-Physical Domestic Violence

Domestic violence is much more than physical violence.  Domestic violence is riddled with stereotypes.

When we think about domestic violence, we often focus on the violence which may consist of a husband lashing out at his wife, a girlfriend throwing a blender at her boyfriend, one spouse hitting the other with a baseball bat and other types of physical violence.  These examples are more in line with stereotypical abusers.

Domestic violence is also sexual coercion; financial control; verbal abuse; isolation from friends, family, and co-workers; denigration; humiliation; controlling decisions; stifling independence; monitoring whereabouts and more.   These are actions that are all about power and control.

Many Perpetrators of Domestic Violence Never Use Physical Violence

A string of controlling and domineering actions depletes a partner’s ability to develop individually; to improve education, financial independence, professional advancement or have much of a friend or support network. The abuser twists the partner’s mind, plays games and is confusing.  The abuser breaks promises, switches tactics, makes excuses and blames the partner.  One by one, a partner’s options for personal growth and independence are taken away or minimized – never once by using physical force.

There is public outrage about physical violence. Non-physical power and over-controlling abuse are invisible. There is less public understanding about non-physical domestic violence.  This lack of understanding means the victim cannot define what is happening.

People who experience a systematic pattern of psychological abuse and control suffer from psychological wounds that can be longer-lasting than the wounds from physical violence.  Commonly, where the dynamic of the relationship is about power and control without violence, there is no honeymoon period of remorse and renewed promises. Instead, there is a consistent effort at total domination.

Domestic Violence Protective Orders

North Carolina law defines civil domestic violence as any instance where a person with whom you have had a personal relationship takes any of the below actions against you or a minor child:

A victim may obtain a Domestic Violence Protective Order against a partner who commits any act of domestic violence – physical or non-physical.  A Domestic Violence Protective Order is a CIVIL remedy, although there may be related criminal penalties that go hand-in-hand with domestic violence.

“Harassment” for the purpose of obtaining a Protective Order, means: “knowing conduct, including written or printed communication or transmission, telephone, cellular, or other wireless telephonic communication, facsimile transmission, pager messages or transmissions, answering machine or voice mail messages or transmissions, and electronic mail messages or other computerized or electronic transmissions directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose such that a reasonable person in the victim’s circumstances would feel harassed; and that the victim suffer significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling.”

In our age of electronics and technology, a perpetrator can commit acts of domestic violation by cyber harassment.  A partner can be monitored electronically; harassed online through social media or via email or other means.  North Carolina has additional remedies on the criminal law side for cyberstalking and revenge porn.

Protecting Against All Violence

Acts of non-physical abuse are just as dangerous and damaging as physical violence — sometimes even more so.  Victims may feel like they have no options if they’re suffering from non-physical domestic violence, but they need protection all the same.

For more information on stalking, cyberstalking and family law, contact the Raleigh domestic violence attorneys at Cheshire, Parker, Schneider, and Bryan today. We represent anyone who has been a victim of domestic violence (physical and otherwise) and needs help getting justice. Call us today for a consultation on your case.

 

Separation Agreements

A Separation Agreement is a contract between spouses.  It is enforceable under contract principles of law.  It differs from a Court Order because a Separation Agreement is modifiable only if the parties mutually agree, whereas a court can modify an Order over the objection of a party.  We will advise you whether your interest is best served by the execution of a Separation Agreement rather than a Court Order, or whether it is best for you to have both.

Separation Agreements can cover a multitude of topics, like:

A Separation Agreement, more completely known as a “Separation Agreement and Property Settlement Agreement,” is an alternative to litigation.  However, litigation is often initiated and thereafter settled with the execution of a Separation Agreement.

The negotiation of a Separation Agreement is not easy.  It may be time consuming and complex, depending on the nature and extent of marital and separate assets.  Most of the time, neither party succeeds in getting every single term he or she wants.  Each side must compromise, and compromise is hard.  But first, you need to be educated about what North Carolina law allows and what your options are so you can make informed choices.

For more information on separation agreements in North Carolina, contact a Raleigh divorce mediation attorney at Cheshire, Parker, Schneider & Bryan today.

 

 

Parental Alienation in Child Custody Cases

Even the use of the word “alienation” sparks controversy amongst parents, lawyers, mental health professionals and child custody “experts.”  The phrase “parental alienation” is used very broadly to define an estranged relationship between a child and one parent.  After a separation, there are often multiple allegations and counter-allegations that may include accusations that one parent is intentionally poisoning a child against the other parent.

It is uncommon that there is just one dynamic contributing to a child’s rejection of a parent.  There are complex, multi-factored, interactions that cause children to reject a parent, including abuse, poor parenting, family conflict and domestic violence, among others.

Get Legal Help Early

When there is evidence of a child resisting visitation, it is worth a pound of legal and mental health intervention before these problems become deep-rooted.  Parent coordination is almost always a necessary tool for managing cases where there is evidence of alienation because the Family Court is not able to intensely manage the needs of the family.  Court intervention is necessary — even critical — because coercive court authority is needed to support compliance with treatment and custody orders.

The favored parent and child are rarely motivated to comply with court orders that support reunification or access to the other parent, so a court order enforced by contempt of court or sanctions is often necessary for progress to occur.

Distinguishing Conduct From Patterns of Behavior

After a separation, most parents will make a few angry and inappropriate statements, and most children will find a way to ignore these occasional outbursts.  It is important to examine parental behavior to evaluate whether these angry and inappropriate statements are situationally-isolated incidents or whether they are a pattern of ongoing behavior.  Alienating behaviors can range from mild belittling and hostile comments about the other parent to intense and active campaigns to paint the other parent as evil.

When the idea of separation and divorce is new to a parent, a parent may make some disparaging remarks to a child about the other parent.  Although this is not acceptable behavior, it is understandable when the wounds are fresh and the pain is raw.

When called out on the offending statements, if the parent immediately takes corrective action (and means it), these are most likely isolated acts that will not cause a child or the parent-child relationship permanent harm.  On the other hand, when a parent vindictively continues a pattern of persistent attacks, even subtle ones, legal and therapeutic steps must be taken.

Overt and malicious behaviors are obvious to most everyone.  Some behaviors, while subtle, are just as damaging and traumatic to a child and to parent-child relationships as obvious actions.

Consider this: Let’s say we have a dad who expresses support about the mother, along with confusion and dismay about the child’s rejection of the mother. However, dad “accidently” leaves court papers out in the open and anxiously says goodbye with frantic hugs and kisses, saying, “Don’t worry baby, I’m sure you’ll be ok with mommy, but text me as soon as you get scared.” Dad might also make fabulous plans during times when the child is supposed to leave for his or her custody time with mommy. Such actions could be viewed as a pattern of behavior that will likely contribute to damaging the parent-child relationship.

It May Not Be Just One Parent

In most cases, it is not just one parent that is contributing to the estrangement between the child and a parent.  Actions taken by each parent have an impact.  Take the dad’s actions outlined above, and add to the mix how the child may feel when mom says, “You’re acting just like your dad,” and when mom screams “get out, get out, get out – this is my time. You’re ruining my life,” when dad walks into the room.

Legal and mental health interventions must occur where there is alienation or estrangement.  A detailed, clear and specific custody order is critical.  An experienced mental health professional is essential and a Parent Coordinator is necessary.

For more information on this complex subject, contact a Raleigh child custody attorney at Cheshire Parker Schneider & Bryan.

 

Premarital Agreement Mediation

Negotiating a premarital agreement can be very touchy.  Typically, the process begins with one spouse-to-be creating a draft of a document that protects that party, seemingly to the exclusion of the other.  The “moneyed spouse” proposes initially that very little (or none) of the money or assets are to be shared with the other spouse except under the control of the moneyed spouse.  And, there is no guarantee or minimum amount of money or assets paid to the less-moneyed spouse, either at separation or death (even if the marriage is intact), and there are iron-clad provisions dictating who gets what if the parties separate.  You can imagine the ire of the other spouse when this kind of one-sided draft is first read.

Negotiating a Premarital Agreement in the “traditional” way – spouses-to-be standing with lawyers taking adversarial positions like the marriage is a business transaction – can create destructive emotions that are carried over into the fledgling marital relationship. The transactional business deal approach can be bruising and destructive, and can lead to an inadequate document. The quality and terms of the Premarital Agreement can be poor since it was not tailored to the real needs and aims of the future spouses.  There is a better way to negotiate Premarital Agreements than the “traditional” type of negotiation.

Premarital Agreement Mediation!

ADVANTAGES OF MEDIATING THE PREMARITAL AGREEMENT

Mediation is an excellent way for people to discuss tricky issues that provoke hot emotions.  The emotions will still provoke hard conversation, but the mediation setting can lower the heat.  The first difference is that rather than begin with a document that one side has become attached to, a Premarital Mediation can begin with balance since no one has become cemented in his or her proposals.  Prior to Premarital Mediation, each spouse-to-be is offered a checklist of discussion items.  The idea of the Premarital Checklist is for the couple to consider his and her individual approach to the 4 pillars: family, finances, faith, and fun.  Ideally, the couple will discuss approaches and goals prior to mediation.  The Premarital Checklist includes issues like: money and asset accumulation and management; who makes money decisions; who handles the checkbook; savings; money styles; long-term goals; credit and debt; religion;  employment; children; relocation; extended family; post-separation spousal support; business ownership and participation; marital fault; and more.

In Premarital Agreement mediation, the couple can formulate the terms of the Agreement face-to-face, with the assistance of the mediator, lawyers, and the Premarital Agreement Checklist of each party in the background. Rather than trade term sheets back and forth, the spouses are communicating and collaborating toward a mutual understanding and respect while coming to terms of the Agreement.  This give-and-take at the outset of the marriage is an achievement that starts the marriage off successfully.

BALANCE, INFORMED CHOICES, ENFORCEABLE TERMS

A Premarital Agreement must not be coercive. Each party must freely and voluntarily agree to the terms.  A Premarital Agreement must be enforceable. The danger in a “traditional” Premarital Agreement negotiation is that one side is perceived to be a bully, arm-twisting for favorable terms under the threat of backing out of the pending nuptials.  If the agreement is not coercive, the parties will likely stand behind it if there is an initiating event that causes it to come into play.  The Premarital Agreement mediation process creates more balanced terms, informed choices, and an enforceable document.

In mediation, the discussion can be rational and productive. Ideas about to how to fairly and accurately balance and accommodate the parties’ concerns can be processed.  The parties may also learn about ideas and solutions they would not have been aware of without the collaborative input of the mediator and lawyers.  Having a spouse-to-be bring along an independent lawyer is not adversarial – in the context of the mediation, the goal of all participants is to craft an Agreement that is reflective of the needs, desires, and concerns of each spouse-to-be.

There is no better way to come to a true meeting of the minds that takes into account the interests and goals of each spouse-to-be than to do it face-to-face in mediation sessions with a mediator.

At Cheshire Parker Schneider & Bryan, our Raleigh Family Law attorneys represent anyone who is about to be married and who is considering entering into a Premarital Agreement. For more information regarding premarital agreement mediation, contact a CPSB lawyer today.

 

PreMarital Agreements and Social Media

As you and your significant other begin to discuss marriage, you may not have thought much about your social media presence beyond the relationship status update on your Facebook page or the name change on your Twitter account.

If you and your partner-to-be are negotiating a Premarital Agreement, you may not have discussed whether social media accounts and online sharing should be included in your Premarital Agreement but it’s a topic that you should consider.

Social networking clauses are becoming increasingly popular in premarital agreements as more and more couples try to protect their online reputation and right to privacy. One partner may be a “share everything” type of person, while the other is more private. In some cases, a spouse’s career may be jeopardized because of careless or provocative pictures, tweets, or posts. It is important that you consider how using social media will intersect with sharing your life with someone.

What Can You Limit?
A social media clause can include limitations about images and information that each spouse can post online about the other. Prohibited actions may include limits about online photos of the children; images of the couple at parties; or images of a spouse smoking.

Provisions in the Premarital Agreement could include rules for tagging the other spouse, or requirements that all settings be at the highest privacy setting, or requirements for access by invitation only.

The restrictions on social media use must be as detailed as possible and should include references to the harm that is intended to be prevented. Without the detail and connection to potential harm, these clauses run the risk of being violations of free speech, contrary to public policy, and unenforceable.

The penalties for violation can vary depending on how the couple wants to handle a breach. Penalties can also vary depending on whether the violation occurred during the marriage or after separation.

Social Media and Divorce
If you and your spouse separate, you should be wary of what you post online regardless of whether there is a social media clause in your Premarital Agreement or regardless of whether you have a Premarital Agreement. Online pictures, videos, blogs, chats, and posts can be used against you and you may find yourself eating your very words.

A social media clause in a Premarital Agreement can cause a spouse to have second thoughts before uploading a bevy of images or making a careless post or comment that has unintended but real harm. You can help protect your own reputation, professional interests, and personal relationships though discussions with your soon-to-be-spouse about the boundaries of social media use and use of a Premarital Agreement to clarify the rules.

At Cheshire Parker Schneider & Bryan, our Raleigh Family Law attorneys represent anyone who is about to be married and who is considering entering into a Premarital Agreement. For more information regarding social media and online protection, contact a CPSB lawyer today.

 

Child Support and Pregnancy Laws

Parents have a legal responsibility to provide financial support to their children until they turn 18 and are considered legal adults. In a stable, two-parent home environment, both parents have the opportunity to contribute to that support from the moment of conception, no matter what the family situation is or who the breadwinner may be. For divorced families, North Carolina has established child support laws to regulate how this financial support is divided.

But in some cases, parents may have divorced before their child was born, or they may not have been married in the first place. Both scenarios leave parents facing situations where one of them (usually the mother) is shouldering the financial responsibilities during pregnancy. In such cases, should the mother be receiving child support during her pregnancy and before the child is born? Here, the child support laws get a little more complex.

Paternity Laws
In some states, the laws have provided for such scenarios, making it a requirement that both parents must support their unborn child. A father can be made to provide child support to a pregnant mother throughout the pregnancy. However, in order to mandate child support obligations, the court must have proof of paternity.

The paternity can be established by presumption in a likely scenario (husband and wife, for example), court order, a paternity test, or even a father’s acknowledgement, but these methods can be disputed in court, dragging out the process of establishing financial responsibility. Paternity tests also pose a problem because they may present a threat to an unborn baby’s health.

If paternity is not established, a mother cannot receive child support throughout her pregnancy and must wait until the child is born. Then, paternity can be established through testing and the courts can make a determination on child support responsibilities for both parents.

North Carolina Laws
The state of North Carolina does not require fathers to pay child support until the child is born; so throughout a mother’s pregnancy, she is responsible for all financial burdens including medical care and expenses related to childbirth. The father does not have a legal obligation to provide any financial contribution, unless he wants to do so.

North Carolina does provide a way for a mother to receive reimbursement for some of the medical expenses related to child birth. This is done through a legal claim, and it is important for the mother to keep detailed records of all expenses, bills and receipts so the other parent can contribute. However, a reimbursement claim cannot include any expenses for the mother’s prenatal care.

Call a Lawyer Today
At Cheshire, Parker, Schneider, and Bryan, a North Carolina law firm, we help parents determine how they will handle care of their children, especially if they are divorced or separated. We offer legal counsel on custody and child support issues. For more information regarding North Carolina’s laws and requirements, contact one of the Raleigh family attorneys at CPSB for a consultation today.

 

CPSB Partner Co-Authors NCBA Family Law History

Last year, the North Carolina Bar Association (NCBA) published a complete history of the NCBA’s Family Law Section from 1980 to 2013. This publication was a joint effort between Tharrington Smith attorney Lynn P. Burleson, and our own team member, Amy L. Britt. Ms. Britt, a partner with CPSB, provided the history for the decade spanning from 2003 to 2013, while Mr. Burleson worked on the earlier years.

The History of the Family Law Section of the NCBA provides a look into the Section’s influence on the development of North Carolina’s family law legislation over time. The history describes the Section’s position on specific legislation, and how the efforts of Section members have impacted the state’s current family law statutes. The History also provides a membership report, a list of continuing legal education seminars sponsored by the Section, and a list of officers and council members.

Family Law Section
The NCBA Family Law Section is a professional membership association for family lawyers who work in North Carolina. The Section’s efforts lie in promoting improvements to existing state laws and programs for family law through pro bono legal services, legal education, practice guides, mentoring programs, and legislative changes. The Family Law Section provides continuing education programs for lawyers, with seminars on child custody, child support, alimony and equitable distribution. The Section also publishes the NCBA “Family Forum” newsletter for its members and helps mold the legislative agenda for presentation to the General Assembly.

Amy Britt
Ms. Britt was admitted to the North Carolina Bar in August 2005, and since then, she has dedicated herself exclusively to the practice of family law in Wake County and Raleigh. She has successfully worked with clients who are going through the process of divorce and separation, and she has considerable experience in handling child custody, support, alimony, and equitable distribution cases. Ms. Britt also handles domestic violence cases, and prepares premarital agreements, property settlement agreements, and domestic relations orders for parties.

Ms. Britt is licensed to practice law in the U.S. District Court in the Eastern District of North Carolina, and she has lived and worked in Raleigh since 2005, giving her unique insight into the local court systems.

The attorneys at Cheshire, Parker, Schneider & Bryan are proud of Ms. Britt’s efforts and dedication to this project and the important work she did in providing the state with an updated History of the Family Law Section of the NCBA. Like Ms. Britt, all of our team members strive to involve themselves in efforts that will help the legal community and the local community. CPSB is a leading law firm in Raleigh, NC, and our Raleigh family lawyers are dedicated to providing high-quality legal services to clients.

 

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