When Can a Child Testify in a Child Custody Case?

By King Law Offices September 9th, 2014

Custody matters can be extremely difficult, time consuming, and expensive. The ultimate determination for the court is what is in the best interests of the child. Clients often want the court to hear what their child has to say about the family situation but there are some important points to be made on this topic.

First, nobody can tell the judge what to do. Your child’s testimony in no way binds the judge to any particular arrangement for custody or visitation. Second, the age of your child matters. Usually, the older the child is, the more weight will be given to his or her testimony. Children under the age of nine are generally not considered mature enough for the judge to give their testimony considerable weight. Third, there are two ways that your child may be asked to testify. Usually the child will testify in open court like any other witness. Sometimes, if both parties agree, the child can testify in judge’s chambers. In this situation, sometimes the attorneys will be present and other times the judge will speak to the child alone. If the parties cannot agree to have the child testify in chambers, your attorney can make a motion to clear the courtroom while your child testifies. Finally, the important thing to remember is that having you child testify is a huge decision. The impact it can have on your child can be significant and having them “pick sides” can cause damage to the parent-child relationship. You should carefully consider these points when deciding on whether or not to have your child testify in your child custody matter.

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Prenuptial Agreements

By King Law Offices | September 3rd, 2014

In North Carolina, prenuptial agreements are governed by the Uniform Premarital Agreement Act, which can be found in Chapter 52B of the North Carolina General Statues.

The basic requirements are that the agreement must be in writing and signed by the engaged couple. This document will become a legally binding contract between the couple, upon the marriage of the two signing parties. According to the statute, prenuptial agreements may contract with respect to: the rights an obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located, rights to manage and control property, disposition of property upon separation or any other event, eliminate or modify spousal support, create a will, and the disposition of a life insurance policy. See N.C. Gen. Stat §52B-4. This is not an exhaustive list and there can be extensive details included in the agreements. The original agreement can be amended or revoked by a written agreement signed by both parties and the amended version is enforceable without consideration.

However, the agreement will not be enforceable if the party it is being enforced against can prove that it was not signed voluntarily or that the agreement was unconscionable when it was executed. It is important to note that if alimony is waived, that waiver can be dismissed by the court if one spouse is eligible for public assistance because of the marriage ending.

Fore more information about prenuptial agreements, click here.

Mediation in Equitable Distribution Cases

By King Law Offices | August 28th, 2014

The process that deals with dividing up marital assets and debts after two parties have separated is called equitable distribution. The North Carolina General Assembly passed a statute to establish a program that requires equitable distribution disputes to go to mediation before they are heard in the court room in an effort to save time and money, as well as to facilitate judicial economy.

In North Carolina mediation is now required before equitable distribution disputes reach the court. If the parties can agree, they can choose their own neutral mediator. If they cannot agree as to who the mediator should be, then a judge will select one for them. The parties are also responsible for paying the costs of mediation. However, if the court determines that someone is indigent, which means they are unable to pay the costs of mediation, then the mediator will provide their services at no charge.

The mediator responsible for scheduling the mediation conference and finding a neutral, agreed upon location where the mediation can take place. During mediation, the mediator serves as a neutral person who focuses on the parties’ issues and helps them to try and come to a settlement agreement. A mediator should never impose their own judgment on the parties at mediation, even though a mediator may offer his or her thoughts, with counsel for the party in the room.

If the mediation serves its purpose and is successful, the parties will come to an agreement as to the division of their marital assets and debts. The agreement will be put in writing and signed by both parties and the mediator. Once the agreement is complete, the mediator will notify the court that the case has settled and there will be no need to go to court for issues related to equitable distribution. If the mediation is unsuccessful and an agreement cannot be reached, the mediator will report to the court and the case will proceed to trial thereafter.

If you are in a situation where you need access to property, whether it is land, money, or otherwise; or, if you need documentation for title, deed, or a division of debts incurred during the marriage, contact King Law Offices to speak with one of our experienced attorneys today.

Do I Really Need to do a Title Search?

By King Law Offices | August 24th, 2014

When someone buys a new home or new property, a title search needs to be conducted to make sure there are no problems with the title of the house or property.

For example, if you purchase land that has a lien attached to it, you, as the new owner of the land, are now responsible for this lien. Another example would be to ensure that the seller actually does have title to the land. A title search assures that there are no liens or encumbrances on the property and allows you to get free and clear title to your land.
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Local Attorney Brittany Waters Joins Our Firm

By King Law Offices | August 22nd, 2014

Lifelong Cleveland County resident and local attorney Brittany Waters joined King, Crotts, Duncan & Jaynes with a new position in their Shelby office.  Ms. Waters has concentrated her practice around family law, criminal law, and general civil law, and she expects that to continue at her new position.

Ms. Waters, a former intern with King, Crotts, Duncan & Jaynes, comments on the change, “I’m very excited to be coming back here.  This is where I began my career, and I feel very blessed to be given this opportunity to continue my practice at such an established firm.”  The change will not affect any of Ms. Waters’ current clients, as she is remaining in Shelby, continuing her service with the community.

Managing partner and firm-founder Brian King, a North Carolina State Bar Board Certified Specialist in Family Law, began the firm in 2002.  “I have always been impressed with Brittany as both a lawyer and a person,” said Mr. King of the move.  “She is a wonderful addition to this firm, and I am very happy to have her on our side instead of arguing cases against her.”

How Facebook and Social Media Can Affect your Child Custody Case

By King Law Offices | August 19th, 2014

The majority of people today are, in some way, linked in to social media. This allows families to keep in contact with each other like never before. However, in some child custody situations social media can pose a huge problem.

Most child custody cases today involve some aspect of social media, whether it is pictures, messages, or comments. It is important to remember that in a child custody battle, the court is trying to determine what is in the best interests of the minor child or children. Questionable photos or harassing comments could indicate to a judge that you might not be a suitable parent. Further, comments, pictures, etc., can be taken completely out of context to look worse than they are. That puts you on the defensive to prove it is out of context. Read the rest of this entry »

NC Driving Privileges

By King Law Offices | August 13th, 2014

A driving privilege is not always available if you have had your license revoked in North Carolina. The eligibility of obtaining a driving privilege depends on whether there is a charge or a conviction, and what type of charge or conviction you received.

Driving Privileges for Speeding Charges

First, there is a driving privilege for speeding and reckless revocation of a driver’s license in North Carolina. The driver’s license is revoked for certain degrees of speeding, for two reckless driving tickets within one year, and others. In this case, a one-year privilege can be granted to you if there are no other convictions other than the one that resulted in the suspension of your license from the time of conviction to the date of the suspension of your license. However, if you do have prior convictions within one year, then the privilege will only be awarded for thirty days even though the suspension may be longer than that. Read the rest of this entry »

Types of Easements in North Carolina

By King Law Offices | August 7th, 2014

An affirmative easement is one that grants someone a right to use another’s land for some specific purpose. For example, if I grant my neighbor the right to use the path on my land to get to the pond on the other side, that is an affirmative easement.

A negative easement is basically a promise not to do something on your land, and most of the time it is going to be something that would ruin a good view. An example would be an agreement to never build anything higher than one story on your property. Many of these are now covered by covenants and restrictions in homeowner’s association, and they are also referred to as easements of light and air (which are only recognized in North Carolina if they are clearly and expressly stated).

An easement appurtenant is an easement that is attached to the land. There must be two tracts of land: one benefitted parcel of land (dominant) and one burdened parcel of land (servient). A dominant estate is the land that was granted an easement. A servient estate is the land that is subject the easement. The easement is attached to the land for the specific benefit and burden of those lands that are subject to the easement. The easement will pass with the transfer of the dominant estate even if the deed does not mention or reference it. Most easements are appurtenant as opposed to in gross. An example is if someone grants land to their neighbor to cross the land to get to theirs.

Easement in gross do not benefit any specific land, but instead benefit a person who is granted the easement. A servitude is placed on the land that will be subject to the easement that and the benefit runs with the person. Common examples of this type include granting a power company or some other sort of utility service company the right to come on the land and place power lines or some other utility item there, and a bill-board site on the side of the road (since someone does own that land).

Easements can be either expressed or implied. If they are express, there can be an express grant of an easement to another (i.e. you can cross over my land to get to yours), or there can be an express reservation that allows someone who is conveying away a portion of his land to reserve an easement for himself after the land is severed (i.e. I am selling my land but I grant myself use of this driveway even thought I am giving it to you). Implied easements are those that are inferred by the court by implication, which is usually when the land cannot be used at all or beneficially without the grant of an easement by the court. There are two types of implied easements: Those implied by necessity and those implied by prior use.

Easements implied by necessity are used when a parcel of land that was previously in common ownership becomes landlocked at the time of the severance of that land and conveyance to another. The parcel must be landlocked, i.e. no way for ingress or egress, at the time of conveyance from common ownership. The requirements are as follows: Conveyance of a portion of land, where, after severance, it is necessary to have an easement in order to have access to the land. In this case, there is an implied right-of-way created. It cannot be based on convenience only, but there has to be a degree of necessity in order to establish the right-of-way across the grantor’s land. For example, say you own 20 acres of land, and only one side of that land accesses the main state road. If you sell 10 acres that then prevents access to the main state road, there can be an easement implied by necessity because you have no way out of your 10 acres that remain.

Easements implied by prior use require a conveyance from common ownership of a portion of the land, and prior to the conveyance the land was used as if there were an easement appurtenant already in existence. There is a requirement of necessity for this easement as well, but the degree of necessity is not as great as the degree needed for an easement implied by necessity. The prior use must be permanent, continuous, and apparent in order to be valid. For example, if you had a waterline running under the land to get to your house, and you sold part of your land that had the waterline under it (but not the part with the house), then you are likely to be able to continue the use of the path because of this type of easement.

Easements Implied From Plat and Easements by Estoppel are similar to one another. They are based on reliance on something in order to purchase a property in most cases. For an easement implied from plat, the basis for the easement is that it was an inducement to someone purchasing the property. For example, if someone purchases a home in a neighborhood, and before they purchase the property, they are shown some map or view of a street or some other part of a communal property that they would be permitted to use.

Easements by dedication are used when a person or entity dedicates or gives an easement to the public.There are certain requirements for this to be valid, but in sum, the person or entity but expressly dedicate the easement, or do so in a manner that is clear.
Easements by prescription are similar to that of adverse possession in that you are using someone else’s land without permission. The requirements are that the use be adverse, a claim of the right to use the easement such that the owner of the land had notice because of its continuity and because it has not been an interrupted use for at least twenty (20) years.

Additionally, there must be “substantial identity” of the easement that is claimed, meaning that the use is noticeable. An example of this is using a footpath over someone’s land to get to the beach quicker without their permission and they know that you do it, or should know.

Other easements in North Carolina include conservation easements, railroad right-of-way easements, and easements for land covered by water. Some specific examples of the most common easements used in North Carolina are driveway easements, ingress and egress easements, utility easements, sewer easements, and right-of-way easements. These common types fall within one of the larger categories explained above.

Do I Need a Trust?

By King Law Offices | August 1st, 2014

A trust is very useful when dealing with estate planning because it makes costs decrease and the confusion of estate planning and division much easier with a trust in place. Opening a trust is slightly expensive, so it will probably only be beneficial if you have a net worth of at least $100,000 and at least one other condition that makes a trust advantageous, such as: Read the rest of this entry »

Grandparent Custody and Visitation Rights

By King Law Offices | July 24th, 2014

In general, a parent has a fundamental and constitutional right to raise and nurture their child.  We often get questions from grandparents who wish to obtain visitation or custody right of their grandchild or children and often do not fully understand what their rights are. Grandparents do have the right to claim custody and visitation rights even over the objections of the biological parents, but the process is complex.

Grandparent rights are considered to be derivative of parental rights, which means that if the child is adopted into another family or the biological parents have their rights terminated—the grandparents lose their right to visitation and custody. In many situations, the grandparents may have a right to institute an action for visitation rights if a substantial relationship exists between them and the child. Read the rest of this entry »