Raleigh Law Firm

Frequently Asked Questions: Family Law

What is alimony?

Alimony, or spousal support, is designed to provide the lower-income spouse with money for living expenses. This support is in addition to the money provided by child support. Alimony is tax deductible to the person who pays it, and included in the taxable income of the person who receives it.

Are there different types of alimony?

There are three types of alimony, including:

• Permanent alimony – a type of alimony awarded after divorce consisting of regular payments that may change in amount or end if the receiving party remarries.
• Temporary alimony – a type of alimony awarded pending a divorce or separation consisting of payments that include enough money to afford the lawsuit and money to take care of needs until permanent alimony can be established.
• Lump sum alimony – also known as alimony in gross. Some states allow lump sum alimony payments that permit spouses to pay their alimony all at once.

How is property divided in North Carolina?

All property is considered marital property unless proven to be separate property. Separate property falls into 3 categories in North Carolina: property owned by one spouse prior to the date of marriage, property inherited, and property acquired by gift from someone other than the other spouse. The division of the marital property is that which is just and right in accordance with the courts ruling.

Generally, you will receive a 50/50 split, absent some circumstance that indicates otherwise. Twelve different factors apply when assets are distributed including, but not limited to: the unequal earning power of the parties, the expectation of pension or retirement benefits, contributions made by one spouse to the education or career development of the other, the need of a parent with custody of a child or children of the marriage to occupy the marital residence and use or own its household effects.

How do I obtain a divorce?
You must meet the following requirements for a divorce in North Carolina, and follow these steps:

• You and/or your spouse must live in North Carolina for at least six months before filing the action for divorce.
• You or your lawyer must file a divorce complaint with the clerk of court in the county of your residence.
• The divorce complaint must be delivered to your spouse, either by the county sheriff or by certified mail.
• After waiting a specified period either you or your attorney can appear in court and obtain a divorce. Once the judge signs the order, your divorce is final, and you may remarry if you so desire.

How long does a divorce take?

A divorce takes a minimum of 45 days from the date your divorce complaint is filed. The North Carolina Rules of Civil Procedure require that the answering party have 30 days to file an answer or request an extension of time. Once that time period expires, certain notice rules must be followed which account for the remaining time.

Does a spouse have to prove fault on the part of the other spouse to obtain a divorce?

No. North Carolina is a no-fault divorce state whereby either spouse may obtain an absolute divorce based on one year's separation (the only other ground is proving incurable insanity which is rarely used).

What is the difference between a legal separation and a divorce?

Divorces are not final for at least 6 months, while a legal separation can be final almost immediately. The largest difference between the two is that if you proceed with a divorce you are no longer married. A legal separation only separates the two parties – they remain married.

What are the different types of child custody?

Child custody can be broken down into three separate categories:

• Temporary Custody – custody is assigned temporarily to one parent while permanent custody arrangements are being made.
• Legal Custody – separated into both sole legal custody and joint legal custody,
• Sole legal custody - when only one parent holds the right to make legal decisions for the child.
• Joint legal custody - when both parents hold the right to make legal decisions for the child.
• Physical Custody – separated into both sole physical custody and joint physical custody,
• Sole physical custody - when the child lives with one parent and the other has specific visitation rights.
• Joint physical custody - when a child is able to reside with each parent for a substantial amount of time during the course of a calendar year.

May I withhold visitation because my spouse will not pay child support?

No. If you withhold visitation because a spouse will not pay his or her child support, you are taking the law into your own hands and may be held in contempt of court. If your spouse will not pay child support, you should see an attorney who will advise you on how to recover the lost child support payments and to further ensure that your spouse continues to make timely payments in the future.

Frequently Asked Questions: Criminal & Traffic Law

What is a misdemeanor?

A misdemeanor is a petty offense. It is a less serious crime than a felony, punishable by less than a year of confinement. The confinement is in a city or county jail, rather than a penitentiary.

What is a felony?

A felony is a serious crime, such as arson or murder. In addition, if the law provides for imprisonment for an offense that is longer than one year, the offense is usually considered a felony. A felony arrest remains on your record forever and can be used against you for sentencing purposes on future cases, regardless if you were guilty or innocent of that previous charge.

What is the difference between a felony and a misdemeanor?

Generally, the potential punishment is the deciding factor in whether a crime falls into one category or the other. If imprisonment for longer than a year is the punishment provided by law, it is usually considered a felony. If the potential punishment is for a year or less, then the crime is considered a misdemeanor.

What are my rights if I am stopped, searched, or arrested by the police?

Your rights are as follows:

• You have the right to ask why you have been stopped
• The police may "pat-down" your clothing if they suspect you are carrying a concealed weapon, but you have the right to refuse any additional search.
• If you are arrested in North Carolina, the police must tell you that you have the right to remain silent and the right to talk to a lawyer.

Do I need a lawyer if I am charged with drunk driving?

If you have been arrested for operating a vehicle while under the influence, it is in your best interest to contact an attorney at Hopper Law Firm. Our attorneys know the NC state laws governing a drunk driving arrest and will be your advocate and defender in your case.

Do I have to take a Breathalyzer test if the police ask me to?

Yes. To fail to take this is a criminal offense for which you can be charged. Immediately contact an experienced DWI lawyer at Hopper Law Firm to assist you with your case.

The police did not read me my rights when I was arrested. Will my case be dismissed?

Failure to advise you of your Miranda rights does not automatically result in dismissal of the case against you. It is possible to get your statements thrown out in certain circumstances, but you should discuss the facts of your case fully with a knowledgeable and experienced criminal law attorney at Hopper Law Firm.

Am I at fault if I rear-end another vehicle?

Almost always, yes. The law states that you must maintain a safe distance to be able to stop safely if a car stops in front of you.

What is a criminal traffic offense?

A criminal traffic offense such as driving under the influence, fleeing a police officer or leaving the scene of an accident, requires a court appearance and it carries with it criminal penalties which may include a fine, court costs and/or the possibility of a jail term.

What is a civil traffic infraction offense?

A civil traffic infraction is a non-criminal charge that can be disposed of by payment of a civil penalty, requesting a court hearing, or election of a defensive driving course. A court appearance is not required, except in cases where the violation involves serious bodily injury or death of another person.

Frequently Asked Questions: Business Law

What is business law?

Business law encompasses rules, statutes, codes, and regulations established to govern commercial relationships and provide a legal framework within which businesses may be conducted and managed. Business law is highly diverse and includes areas such as:

• Banking and finance law
• Business formation
• Business planning
• Transactional business law
• Acquisition or merger
• Divestiture,
• Sale of business

What is involved in properly setting up and maintaining a business as a corporation?

You should contact an experienced business attorney at Hopper Law Firm, as well as a certified public accountant (CPA) to be sure that corporate formation and maintenance are handled properly. The attorney will draw up articles of organization with language to protect you from personal liability.

What is a Limited Liability Company and how is it set up?

Your business may have the flexibility of a partnership and the legal protection of a corporation if it is a limited liability company ("LLC"). The LLC uses an operating agreement, similar to a partnership agreement, to control business, financial and tax provisions. The operating agreement may be oral, although it should be in writing and signed by all the LLC's members. Through its provisions, the operating agreement determines whether the LLC is taxed as a partnership or corporation.

How do I terminate my LLC?

• Death;
• Retirement from the company;
• Resignation from the company;
• Personal bankruptcy; or
• Expulsion from the company by the other owners.

Once dissolution is brought on by one of these events, the remaining members typically must wrap up the company's remaining obligations and terminate the organization. However, if two or more members remain, they can avoid termination by agreeing to continue the business.

How do two corporations merge to form one company?

Generally, the board of directors for each corporation must pass a resolution adopting a plan of merger that specifies:

• The names of the corporations that are involved,
• The name of the proposed merged company,
• The manner of converting shares of both corporations, and
• Any other legal provisions to which the corporations agree.

Each corporation notifies all of its shareholders that a meeting will be held to approve the merger. If the proper number of shareholders approves the plan, the directors sign the papers and file them with the state. The secretary of state issues a certificate of merger to authorize the new corporation.

Do I need a lawyer to create a partnership agreement?

A partnership agreement allows you to structure your relationship with your partners in a way that suits your business. You and your partners can establish the shares of profits (or losses) each partner will take, the responsibilities of each partner, what will happen to the business if a partner leaves and other important guidelines. If you and your partners do not spell out your rights and responsibilities in a written partnership agreement, you will be ill equipped to settle conflicts when they arise, and minor misunderstandings may erupt into full-blown disputes. Hiring an experienced Hopper Law Firm attorney to handle the drafting of your partnership agreement is advisable. We can help you understand the legal jargon and solve disagreements

Frequently Asked Questions: Civil Litigation

What is civil litigation?

Civil litigation relates to the relationships of contract and exchange between private parties (individuals, businesses). Civil law encompasses all law that is not criminal and is divided into two branches: Contract Law and Tort Law. Rather than being tried in a criminal court, civil law cases are litigated in civil courts as law suits and the result is normally financial compensation.

What is tort law?

A tort occurs when someone deliberately or through carelessness causes harm or loss to another person or their property.

What is contract law?

Contract law is the part of civil law that interprets written contracts between parties and resolves any disagreements. Contract law is the basis of all commercial dealings from buying a bus ticket to trading on the stock market.

How long do I have to file my civil litigation claim?

All civil actions are subject to statute of limitations. After this time, the case cannot ever be brought to trial, regardless of how good a case it was. The following statutes of limitation apply:

• Written contracts - five years
• Oral contracts - three years
• Damage to property - five years
• Personal injuries - two years
• Fraud - two years from the date of discovery
• Wrongful death - two years

What is litigation?

A controversy before a court or a lawsuit is commonly referred to as litigation. If it were not settled by agreement between the parties outside of court, it would eventually be heard and decided by a judge or jury in a court. The term litigation is sometimes used to distinguish lawsuits from alternate dispute resolution methods such as mediation or arbitration

What is mediation?

Medication is an informal, voluntary process in which a mediator helps to negotiate a mutually acceptable resolution between disputing parties. Unlike arbitration or litigation, mediation does not impose a solution. If the parties cannot negotiate an acceptable settlement, they may still arbitrate or litigate their dispute.

What is arbitration?

Arbitration is the reference of a dispute to one or more independent third person(s) who act(s) as judge and jury. In advance of the arbitration, the parties agree to be bound by the arbitrator's decision. Cases that are arbitrated are generally resolved faster than conventional lawsuits because there is less bureaucracy and court congestion is not a problem.

Contact an attorney at the Hopper Law Firm today regarding your legal questions!