GPS Tracking IS legal…

Yes they can track you…

Session Law 282 signed on October 15, 2015 makes it lawful for a private investigator to install a GPS tracking unit on your vehicle in a divorce/family law matter so long as they are investigating the identity, habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputation, or character of any person or securing evidence to be used before a

Judge Rules Alienation of Affections Law Unconstitutional

In a major ruling on North Carolina law, a Superior Court judge ruled that North Carolina’s alienation of affections law is unconstitutional.

Judge Joe Craig determined “Here, no compelling state interest exists in protecting the marital relationship that can justify AA’s (alienation of affection) suppression of a right as fundamental as free speech…

“In fact, disgruntled ex-spouses utilize AA and CC (criminal conversation) as blackmail to obtain more money from an ex-spouse or an ex-spouse’s paramour. They seldom, if ever, serve as a means of reconciliation of the broken marriage. Therefore, an adult individual’s right to engage in private consensual sexual intercourse involving another consenting adult or to engage in private consensual communication with another adult constitutes a fundamental liberty that is deeply-rooted in our Nation’s history.”

The North Carolina Court of Appeals also previously determined that Alienation of Affections laws are unconstitutional, but that decision was overturned by the North Carolina Supreme Court in Cannon v. Miller, a 1985 case.

If this case is appealed, the question is whether the Court of Appeals will again hold that the law is unconstitutional despite the Supreme Court previously informing that Court that they had no authority to overturn a Supreme Court ruling.

But a lot has changed since 1985. Several United States Supreme Court cases have held that there is a Constitutionally protected right to engage in private, consensual sexual behavior, most notably in Lawrence v. Texas. There is a lot more law supporting Judge Craig’s decision now than there was in 1985 so the posture of the issue will be quite different on appeal.

A few years ago, I also argued that Alienation of Affections and Criminal Conversation laws were unconstitutional for the same reasons. But that was before a different judge. In that case, the judge took note of my arguments but ruled that he was powerless to rule in my favor because of the NC Supreme Court Cannon decision.

Divorce Flu

A new study suggests that divorce may travel in packs.

“Researchers called the phenomenon a “social contagion” – the spread of information, attitudes and behaviors through friends, family and social networks.”

Snooping Can Get You In Trouble

Gathering electronic evidence highly valuable in a family law case. It can also get you in a lot of trouble if not done properly and lawfully.

Accessing emails, using hidden cameras, recording devices, GPS, keystroke loggers and other such acts is illegal in many cases and may also result in you being sued.

This can also ruin your case because evidence that is obtained illegally will likely be inadmissible in court. Beyond that, evidence that IS lawfully obtained based on information that is unlawfully obtained may also be excluded.

Your lawyer is also ethically prohibited from reviewing illegally obtained evidence or using information from that evidence to ask questions that otherwise would be fair game.

The best strategy is to know what you can and cannot do before doing it.

Social Security Payments For Children And Child Support

A child can qualify for Social Security benefits if their parent is receiving Social Security retirement or disability benefits (SSDI), or was entitled to one of these benefits before they died. These benefits are based on the Social Security record of the parent and are referred to as auxiliary benefits, or dependents benefits.

This can effect child support in different ways.

In North Carolina, the amount that the child receives is added to the income of the parent who is retired or disabled. From there, the child support guidelines are calculated as they normally would be. However, the retired or disabled parent gets to credit the actual payment received by the child towards their child support obligation.

If the retired or disabled parent also has custody of the child and the amount the child receives exceeds that parent’s obligation, then the parent without custody may seek to have the Court deviate from the guidelines or offset their own obligation.

If the amount received by the child exceeds the combined obligation of both parents, then the Court should not enter a child support order.

If the retired or disabled parent does NOT have custody of the child and the amount the child receives exceeds the retired or disabled parent’s support obligation, then the Court should not enter a child support order. The non-custodial parent does not get any of the excess payment refunded to them. If the amount the child receives is less than the non-custodial parents obligation, then the non-custodial parent must make up the difference.

Is that fair? Probably not. A surplus goes to the custodial parent, while a deficit is charged to the non-custodial parent. You can only hope the money is used for its intended purpose.

Why You Need A Lawyer For Restraining Orders (“50B”)

Regardless of what side of a case you are on, it is never a wise choice to represent yourself in a domestic violence hearing (a “50B”).

It may sound self-serving for a lawyer to advise you to hire a lawyer, but there are many pitfalls in a 50B case that you simply aren’t aware of. An experienced family law attorney can help you put on the best case.

If you are seeking a restraining order or have been granted a temporary restraining order, you will be required to establish certain legal elements at the hearing in order to keep the order in effect. You can be sure that the attorney for the defendant is going to know these elements and is going to try and use them to defeat your case.

An experienced attorney will organize your case and walk the court through all of the facts of the case and apply the law in an effort to justify the restraining order you are seeking.

On the other hand, a person defending against a restraining order really needs a lawyer because the consequences can go beyond what is commonly understood. A restraining order does not merely limit your contact with another party, but also affects other rights.

Some defendants will agree to have a restraining order issued against them believing that it only prevents them from contacting the other party when they have no wish to do so any further. However, there are also federal ramifications to having a restraining order issued against you. A restraining order can affect your ability to own a firearm even after the order expires as well as create immigration problems for non-citizens. Some employers do background checks and may view a domestic violence restraining order in your past or present unfavorably.

Also if you have a custody case, the Court is required to consider evidence of domestic violence and the entry of a 50B against you may harm your case.

Although judges try very hard to be fair, in a close case they will often err on the side of caution. That’s why you need to put forward your best defense.

I have represented many clients on both sides in domestic violence cases. If you heed my advice and decide to hire a lawyer, I can help.

Abandonment In North Carolina

One of the most common questions I get asked about when meeting with potential clients is related to “abandonment”.  Clients want to know if they can “get” the other party with “abandonment” or if their spouse can “get” them for “abandonment” if they move out.

In a civil matter such as a divorce proceeding, there is no cause of action for abandonment in North Carolina. This means that a person cannot be sued for “abandonment” in a civil case. This is because North Carolina is a no-fault state, meaning that the reason for a separation is not material to the divorce proceedings. Abandonment has no effect on property division or divorce itself.

However, a person may argue that an abandonment has occurred as a factor for a court to consider when deciding the amount and duration of alimony in a case where alimony is appropriate.  In such a case the party claiming abandonment must prove that the other party 1) ended the cohabitation (living together); 2) without justification or provocation; and 3) without the intent to renew the cohabitation.  In other words, they must prove that the other party left the home for no legitimate reason and with no intention of returning. As a practical matter, it is rare that a separation is without justification sufficient to rise to the level of abandonment because most parties experience marital difficulties well before separation that justify the separation.

Even if a case for abandonment as an alimony factor can be established, it is only ONE factor for the court to consider and by itself does not serve as grounds for a court to order OR deny alimony.

There is a criminal charge of abandonment in North Carolina, but that requires a party to willfully fail to provide adequate financial support to a dependent spouse or child. Simply leaving the home as part of a separation is not criminal abandonment.

In summary, a person cannot be sued for abandonment in North Carolina. Abandonment only applies in alimony cases, and moving out or otherwise leaving a spouse is not abandonment unless it is done without justification and that is rarely the case.

Social Media And Family Law

It’s true that everything you do online is recorded somewhere.  Because of this, you should always be careful about what you say and post online.

Everything you say and do online AND by text message is subject to discovery in a family law case. More and more, Facebook postings and other social media and text communications are being introduced as evidence in family law cases.

Deleting posts will not prevent the opposing party from issuing a subpoena to Facebook or any other social media or communications company for production of your file. Just because you deleted it does not mean that the record no longer exists.

Further, if you are involved in litigation already, attempting to remove information that may be relevant to the case whether it favors you or not may be considered spoliation of evidence. Spoliation of evidence can be very harmful to your case and could result in sanctions.

The best advice is to be careful what you post because you never know how it can come back to haunt you. Also, if you are in the middle of a case or expect to be involved in a case, getting offline by suspending or cancelling your account is the smart choice.

Brought to you by The Spagnola Law Firm, a family law and bankruptcy firm in Greensboro, NC. Serving Guilford County and surrounding counties.