Tweeting Your Trauma

In this day and age of social media, we share everything about ourselves - the good, the bad, and the ugly.  Social media sites such as Facebook and Twitter are a fairly mundane experience to most people.  We post and tweet every single day!

However your status update about driving down the highway may come back to haunt you should your insurance claim go to court. The opposing attorney can use your social media postings against you.  He or she can show that you are active on social media behind the wheel (which means that you are texting and driving, an illegal activity by the way) or reduce your credibility if the one-hundred and forty characters paint you in a bad light. 

As a result, North Carolina attorneys have asked if they may advise their clients to remove existing postings.  And, in response, the NC Bar has replied with a resounding "NO" if the postings refer to the existing lawsuit or accident.  

Relevant social media postings must be preserved.

Social media are considered evidence in a court of law and therefore removing the postings would be considered "spoliation of evidence" or "obstruction of justice" - a violation of the law.  

What we can tell you is to set your security and privacy settings on social media pages to the highest level of restricted access.  This makes sure that strangers are unable to see your day-to-day activity, and lawyers must rely on a court order to obtain any relevant social media postings.

You think you can handle your auto accident claim on your own?

In that case, make sure that you understand:

1. The subrogation laws of North Carolina?

2. Your coverage for underinsurance and the set-off laws of North Carolina?

3. What is the statute of limitations on your case?

4. The true value of your case?

5. What is contributory negligence and "last clear chance" doctrine?

6. How to read an excess letter?

7. When to file suit and when not to file suit?

8. What is punitive damages and when can you claim it?

9. How to get your hospital and doctor bills reduced and much more.​ 

If any of the above confuses you - then get competent representation instead.  

A car accident attorney will always handle your matter on a contingent basis.  Which means you will only have to pay the attorney's fee once he/she obtains monetary compensation for you.  

New Legislation for August 2015

August this year seems to be a quiet month for legislation.  In regard to automobiles, there is only one new change that you should be aware of: Senate Bill 345. 

This bill amends Chapter 20 of the North Carolina General Statutes pertaining to motor vehicles, and specifically adds a new section, 20-166.3, to clarify the maximum amount of time that the police may keep an impounded vehicle after a collision.  The section will read as follows:

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"§ 20-166.3. Limit storage duration for vehicle damaged as a result of a collision.

(a) Limited Duration of Storage. – A motor vehicle that is towed and stored at the direction of a law enforcement agency following a collision may be held for evidence for not more than 20 days without a court order. Absent a court order, the vehicle must be released to the vehicle owner, insurer, or lien holder upon payment of the towing and storage fees.

(b) Application. – This section shall not apply to a motor vehicle (i) seized as a result of a violation of law or (ii) abandoned by the owner."

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This new section will apply to any vehicles impounded after August 1st, 2015.  As a result, drivers cannot be deprived of their transportation for an unreasonably long time, or at least it got a lot more difficult to keep a motor vehicle for an extended period of time.  Senate Bill 345 clarifies the law and protects every day drivers from possible police abuse of the system. 

Remember to keep up-to-date on NC Legislation.  Have you seen the new laws on mopeds?

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Road Rage

Deep in the North Carolina General Statutes 14-197, it can be read as follows:

§ 14-197.  Using profane or indecent language on public highways; counties exempt.

If any person shall, on any public road or highway and in hearing of two or more persons, in a loud and boisterous manner, use indecent or profane language, he shall be guilty of a Class 3 misdemeanor.  The following counties shall be exempt provisions of this section: Pitt and Swain.

There are two things interesting about this particular piece of legislation.  The first is its very existence, that is to say, that swearing as a result of road rage is a criminal offense in North Carolina.  If a police officer hears you screaming obscenities and shaking your fist at other drivers while stuck in traffic, he or she can fine you up to $200 and the court may give you mandated community punishment.  

Secondly, it should be known that this particular statute has seen a wide range of exemptions over the years, though only two counties remain on the list as of today.  Therefore, if you truly want to express yourself in the most colorful way possible while on the road, take a trip to Pitt or Swain counties where there is no filter.

Alienation of Affections

To conclude our three-part series on the various divorce laws in North Carolina, today we will look at an action for alienation of affections, the requirements, and the effects.

Closely tied to criminal conversation, alienation of affections protects the plaintiff's right to affections of his or her spouse - the love, society, companionship, and comfort arising out of the marital relationship - while the former protects the spouse's right to sexual intercourse.  

In Sebastian V. Kluttz (1969), the NC Supreme Court restated the ruling in Bishop v. Glazener (1957):

The essential elements of an action for alienation of affections are the marriage, the loss of affection or consortium, the wrongful and malicious conduct of the defendant, and a casual connection between such loss and conduct.

Basically, a husband or wife may sue his or her spouse's lover for ruining the marriage; the aggrieved spouse considers this a breach of his or her right to be loved as a result of the marriage.  

The fault occurs during the marriage (though the action can be taken months afterwards).  The wronged spouse must show that the couple was, before the misconduct, "happily married."  As long as there was some affection between the couple and that they did not slowly drift apart before the improper behavior, this satisfies the "marriage" requirement. 

Next, the plaintiff must show "alienation" or the destruction or serious diminution of the love and affection of the spouse to the plaintiff.  Filing for a divorce or seeking a separation agreement (or divorce from bed and board), along with a plethora of other reasons, can satisfy this criteria.  Anything that negatively affects the affections, listed as "love, society, companionship, comfort, conjugal kindness, and a favorable mental attitude toward the plaintiffs," may be used to determine alienation.  

To prove "wrongful and malicious conduct of the defendant," plaintiff must show that the lover's conduct consists of affirmative (willful) acts "intending to induce or accomplish the result."

Malice means that these acts are unjustifiable, causing injury complained of, a disposition to do wrong without legal excuse, or a reckless indifference to the rights of others.  Plaintiff will most likely draw from personal experience with the lover to determine if his or her actions were wrongful and malicious.

Finally, the plaintiff needs to link the conduct to the cause of the alienation.  The lover's conduct need not be the only cause of the alienation, but it must be a controlling cause.  

Alienation of Affections is a marital tort that a spouse may cite as a cause of action in a lawsuit seeking compensation for damages such as "humiliation, shame, mental anguish, loss of sexual relations, and disgrace."  Likely to occur after the marriage has already fallen to pieces, the wronged spouse still has the right to recover after the falling out. 

   *As of 2009

In 2014, a superior court judge dismissed a case of Alienation of Affections and Criminal Conversation, Rothrock v. Cooke, ruling that NC's laws regarding the two torts are unconstitutional and in direct violation of both the first (1st) and fourteenth (14th) amendments of the U.S. Constitution.  Yet, both remain a part of the North Carolinian legal system for the moment.  

As one of the only judicial ways to punish adultery, controversy continues to surround the laws in the remaining states permitting alienation of affections and criminal conversation.  

Divorce from Bed and Board

Welcome to the second article in our three-part series on the various divorce laws applicable in North Carolina.  In this section, we will be discussing Divorce from Bed and Board.

Divorce from Bed and Board is little more than a legal separation agreement with fault.  The moving party must prove that the spouse is at-fault for one of the following reasons: 

1. Abandons his or her family;
2. Maliciously turns the other out of doors;
3. By cruel and barbarous treatment endangers the life of the other.  In addition, the court may grant the victim of such treatment the remedies available under G.S. 50B-1, et seq.;
4. Offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome;
5. Becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and life of that spouse burdensome;
6. Commits adultery.

The North Carolina Supreme Court described divorce from bed and board as follows:

A divorce from bed and board is nothing more than a judicial separation; that is, an authorized separation of the husband and wife.  Such divorce merely suspends the effect of the marriage as to cohabitation, but does not dissolve the marriage bond.

What is dissolved in a limited divorce, then, is the obligation to live together, not the marriage itself.  

Divorce from Bed and Board has little to no effect on property rights.  On the other hand, the spouse against whom a divorce from bed and board was entered loses all rights of intestate succession to the estate of the other spouse and the right to an elective life estate in lieu of the intestate share; the right to dissent from the spouse's will; and the right to administer the spouse's estate among other rights.

In regard to support rights and obligations, once again little would change.  The same obligations remain intact because the couple is still married.  That being said, a dependent spouse is able to seek alimony as a joint action for divorce from bed and board and the action may prompt action in regard to child support.  On the other hand, these actions can be pursued outside of a divorce for bed and board.

In the end, this judicial separation does little to the actual marriage and spousal rights.  Outside of certain insurance contracts, pre- and post-marital agreements, estate law, and the separation requirement for an absolute divorce, a Divorce from Bed and Board, while being a long-standing tradition in the ecclesiastical courts of England, serves little use in modern law.

For Worse, For Poorer, Until Divorce Do Us Part

This article marks the beginning of a three-part series on the various laws dealing with divorce in the state of North Carolina.  In the next week or so, we will be going over the following: absolute divorce, divorce from bed and board, and alienation of affections.  Let's start with the standard absolute divorce:

Today, the law of North Carolina permits divorce based upon one year's separation without regard to fault, or a three year separation based on incurable insanity.  

The latter being rarely used, we will focus on the prior.  Like the separation statutes of other states, North Carolina imposes few requirements. The plaintiff must establish the following:

1. North Carolina residence by either the plaintiff or defendant for six months preceding the filing of the action;
2. marriage;
3. living separate and apart for one year preceding the filing of the complaint;
4. and the intent not to resume the marital relationship.

Should all of the above be true, no party can contest the motion for a divorce in North Carolina. We can then break down each requirement.

Residence: Fairly consistent with absolute divorce requirements of other states, six months is the average time one needs to spend in North Carolina before one can file for divorce.  Reading into the statement, it is important to note that one party must reside in the state - not just have a home in the state.  Secondly, six months must have elapsed BEFORE filing for divorce.  In other states, having a home in the state can satisfy the residence requirement and time counts up until the decree of divorce.  In North Carolina, this must be your principal home with intent to make NC your permanent residence.

Marriage: In the complaint, the plaintiff must simply allege that he or she was married to the defendant.  As long as the defendant admits the plaintiff's allegation, there should be no issues.  If the defendant contests the validity of the marriage, that is a different issue to be discussed at a later time. 

Separation and Intent: The State of NC has no interest in keeping alive marriages that are dead physically.  Therefore, the court has established three criteria:

1. a physical separation, and
2. the intent on the part of at least one of the spouse to cease matrimonial cohabitation
3. for a full year

While this final requirement seems to be the most simple, it is evidently the one that has brought up the most contentious issues in court.  Court rulings continue to define how to calculate the year, what constitutes physical separation, and what constitutes consent - most defenses against a separation are linked to this final criteria.  

Nevertheless, if you are looking for a quick and easy way to divorce, an absolute divorce is the way to go.  There is no-fault listed for the divorce.  This is great for couples who can amicably separate and split possessions reasonably and want the divorce to be less expensive than the initial wedding!

Archive

• Auto Accident
• Auto Accident Charlotte
• Auto Insurance
• Auto Insurance Points
• Auto Insurance Policy
• Charlotte Foreclosure
• Charlotte Short Sale
• Deferred Prosecution
• Diminished Value Claim
• Divorce
• Driver's License
• Executive Action
• Illegal Blood-Alcohol Lev
• Immigration Reform
• Liability to 3rd Party
• Lost Wages
• Matthews Accident Attorne
• Medical Malpractice
• Motorcycle Accidents
• Negligence
• Press
• Rental Insurance
• Road Rage
• Short Sale
• Slip and Fall
• Speeding Ticket
• Texting
• Traffic Stop
• Traffic Violations
• Underage Drinking
• Wrongful Death