Durham Family Law Specialist, Barri Payne

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Family Law Articles

Social Media and Divorce

Cautions on the Use of Social Media for Divorcing Spouses and Parties in Child Custody Proceedings As a family law practitioner I feel compelled to offer some advice concerning the use of social media to those of you who may be separating or beginning family law litigation. I have seen evidence from social media used in Court multiple times in the last year or so. Consider these warnings before you post that next picture or comment online: This probably goes without saying, but I have seen several cases in the last couple years in which problems leading to separation were exacerbated, if not caused, by one spouse using Facebook or some other online resource to connect with an old “flame” or new “friends” of the opposite sex. Enough said. Be careful when posting pictures of yourself “socializing” with friends. Pictures downloaded from Facebook are routinely being offered as evidence in...

How Much is Your Pet Worth To You?

Reflections on a Recent NC Appellate Case Should we be able to recover monetary damages for the loss of our pet? If so, how is the pet’s value determined? Does the pet have intrinsic value beyond the cost of purchase? What about recovery for non-economic damages such as loss of enjoyment, companionship, emotional distress, or pain and suffering? On February 21, 2012 the NC Court of Appeals held that in North Carolina we cannot recover damages for loss of pets beyond actual out-of-pocket expenses (such as the cost of replacement value or veterinarian expenses). The case is Nancy and Herbert Shera v. NC State University Veterinary Teaching Hospital. The Sheras’ Jack Russell terrier Laci died as a result of veterinary malpractice. NCSU admitted the error and took responsibility for Laci’s death. The matter of damages was heard by the N.C. Industrial Commission who awarded $2,755 to the Sheras for their...

Is Mediation Negotiation Admissible?

If my case goes to trial, will the Judge hear about what we discussed at the mediation? No. The negotiations that occur as part of a mediation are confidential and cannot be disclosed at trial to a Judge or jury. Neither party may subpoena the mediator and require the mediator’s testimony or notes.

What if Mediation doesn’t work?

What if my case is not resolved through mediation? If you are not successful at mediation, you and the other party, and/or your attorneys can continue to negotiate. If negotiations continue to be unsuccessful in bringing about a resolution, parties may still pursue arbitration or litigation.

What if My Spouse Won’t Negotiate?

Can one spouse quit during the mediation? Mediation is a voluntary process. There is nothing about mediation that requires a definitive resolution. This can be beneficial in allowing parties to resolve only the issues that they want at a pace that is appropriate for their situation. However, if matters remain unresolved, other avenues such as litigation and arbitration may still be used to complete the process and attorneys and the parties may continue to negotiate outside of the mediation setting.

Consulting Your Attorney During Mediation

Will I have an opportunity to speak privately with my attorney during mediation? Yes, if at any point during the process you wish to speak privately with your attorney, you may ask the mediator to step out of the room while you speak.

Is Mediation Binding?

If we reach a decision during mediation, is it binding? Yes. An agreement reached during a mediation can be made into a Court Order, enforceable like any other Court Order. An Order reached through mediation is also subject to the same standards as a Court Order for any future modifications.

Is an Attorney Required for Mediation?

Do I need to have an attorney for mediation? You are by no means required to have an attorney present for a mediation, but some people find them to be helpful, particularly if you are already involved in litigation. The process is slightly different depending on whether clients are or are not represented by counsel, but both methods are successful.

What Can Be Resolved Through Mediation?

What sort of issues can be resolved through mediation? There are many types of mediation that can be used to resolve almost any sort of civil issue. Family Financial Settlement mediators are trained to work with all issues of family law to resolve issues of child and spousal support, custody, and equitable distribution. Other mediators work to resolve contract disputes, negotiate partition sales, and resolve all sorts of civil litigation matters.

What is arbitration?

Arbitration is another way to resolve a dispute that does not involve a Judge. Both sides present their case to a neutral third-party, who makes a legally binding judgment in the matter. Arbitration can be more costly and time-consuming than mediation, because your attorney actually has to prepare your case to present to the arbitrator in a similar way as they would prepare for a court hearing.

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