June 19, 2013
Child support disputes are some of the most common issues in family law cases, regardless of whether the parents are going through divorce or never married. Child support payments in North Carolina are based upon custody categories and an income-sharing method derived from the gross income of both parents. Child support actions may be joined with actions for annulment, absolute divorce, divorce from bed and board, and alimony without divorce, or initiated as a separate civil action.
As with child custody, child support can also be settled by private agreement. Most parties choose this route to avoid the expense and uncertainty of going to court. Additionally, child support can be agreed upon through a separation agreement. Because a separation agreement is a contract, the parties may agree for a parent to assume child support obligations greater than the child support guidelines. However, this does not mean that the court cannot order a different amount of child support in order to protect a child’s interest.
For families with incomes of less than $300,000 per year, the payments are based upon the North Carolina Child Support Guidelines. When combined income exceeds the $300,000 cap, parents can either negotiate themselves or let the court decide what constitutes appropriate child support based on the reasonable needs of both parties.
- Gross income includes income from all sources, such as:
- Salaries, wages, commissions, royalties, bonuses, dividends, and severance pay;
- Social security benefits;
- Pensions, trust accounts, annuities, capital gains, and interest;
- Spousal support from third parties;
- Rental Income;
- Unemployment benefits;
- Disability benefits; and
- Workers’compensation benefits;
Parties can deviate from the guidelines under certain circumstances. Child support is generally increased in families with greater means or when there is a special-needs child. Child support payments may be decreased when the custodial parent does not require the full guideline amount to meet the child’s reasonable needs. Payments can also be decreased when the non-custodial parent does not have the financial ability to make the guideline payments
The obligor party must regularly make the ordered child support payments. Failure to make those payments and remain current can expose the party to significant penalties. The Child Support Enforcement Agency has the power to take away driver’s licenses, recreational licenses, professional or business licenses, intercept income tax refunds, or even place the person in jail.
The custodial parent may be entitled to have their attorney’s fees in child support actions if the fees are reasonable, the party is acting in good faith with insufficient funds to pay the expenses, and the party ordered to provide support has refused adequate support at the time the suit was instituted. In determining whether the non-custodial parent has refused to provide sufficient support, the
- Reasonable living expenses of the custodial parent;
- Child’s past and present expenses; and
- Amount of support the non-custodial parent has provided.
After child support is ordered, either parents can request a change under certain circumstances. There are two different standards when determining a child support modification dependent on whether the original child support order was embodied in a separation agreement or in a court order. If it was in a separation agreement, the moving party has to show the amount of support necessary to meet reasonable needs is not present. If the child support order was through the court, the moving party must show a substantial and material change of circumstance. This is a more difficult burden.
The family law attorneys at Maginnis Law, PLLC are familiar with the complex issues of North Carolina child support laws. If we are unable to reach an acceptable agreement outside of court, we will vigorously protect your rights in court.
For child support or other family law issues, contact Wake County Family Lawyer Karl S. Gwaltney at 919.960.1545 or send a confidential email inquiry using our contact page. Maginnis Law, PLLC is a Raleigh, NC law firm accepting child custody and other family law cases from Raleigh, Cary, Apex, Durham, Morrisville, Clayton, Wake Forest, and throughout the Research Triangle areas.
June 19, 2013
North Carolina recognizes two primary types of custody: legal custody and physical custody. Legal custody gives a parent the right to make major decisions regarding the needs of the child such as education, health care and religion. The child does not have to live with the parent or person who has legal custody. Two people may have joint legal custody (“joint legal custody”) or one person can have all the responsibility (“primary legal custody”). Read more
June 19, 2013
North Carolina G.S. § 50-5.1 allows for a “no-fault” procedure for divorce in which any spouse can obtain an absolute divorce based on one year’s separation. In fact, the only other way to get a divorce in North Carolina is under G.S. § 50-6 and deals with “incurable insanity.” An absolute divorce is defined as “a total divorce of husband and wife, dissolving the marriage tie and releasing the parties wholly from their matrimonial obligations.” There are three requirements for a “no-fault” divorce; residency, separation, and intent. If you are going through a divorce, wish to do so, or have any family law questions, call Raleigh family law attorney Karl S. Gwaltney at (919) 960-1545. Read more
June 7, 2013
Serious motor vehicle collisions can cause severe, life changing injuries. In the worst cases, they can lead to the loss of a beloved family member. The medical expenses are often the least of the damages. The North Carolina personal injury attorneys of Maginnis Law believe that only by working with our clients closely, and not through a team of paralegals and case managers, can we really learn all the ways a collision has affected their life. To discuss your Laurinburg automobile accident or Scotland County personal injury, call our firm at 919.480.8526. Read more
June 5, 2013
North Carolina is an employment “at-will” state. Employment at will provides that employment can be terminated by either party at any time, for any reason, absent a contractual agreement. If you are an employee or employer, it must be emphasized that there are multiple exceptions to this general rule. If you are an employee that has been wrongfully discharged or wrongfully terminated or if you are an employer wanting to ensure compliance with the law, contact the employment law attorneys at Maginnis Law, PLLC. Maginnis Law is a Raleigh civil litigation firm with attorneys handling employment matters relating to NC Wage and Hour Act, the Fair Labor Standards Act, and other business law disputes. Contact the firm at 919.526.0450 or submit a new case inquiry here.
Exceptions to the employment at will doctrine generally revolve around:
- Public policy
- Implied contract terms
- Duty of good faith and fair dealing
The public policy exception applies when an employee is terminated by an employer “for an unlawful reason or purpose that contravenes North Carolina public policy.” Courts have accepted implied contract theories for wrongful discharge by examining statements in employment handbooks and manuals as well as verbal and written assurances. This exception has been given little weight in North Carolina. The duty of good faith and fair dealing can be breached by an employer when the termination was premised upon bad faith or malice. Historically, North Carolina has not been inclined to apply this doctrine.
The Public Policy exception is by far the most recognized modification of employment at will and is the only doctrine expressly adopted in North Carolina. To recover under this theory, the employee must demonstrate that he was terminated because he “performed an act that public policy would encourage or refused to do something that public policy would condemn.” The court stated that “while there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy.” If you have any questions about what constitutes a wrongful discharge or wrongful termination, call Maginnis Law PLLC at 919.526.0450.
There are three general categories of discharge in which North Carolina courts have applied the public policy exception:
- Refusal to commit an unlawful act
- Performance of a public obligation
- Exercise of an employee’s legal rights or privileges
The refusal to commit unlawful acts include claims where an employee was dismissed for declining to participate in illegal actions, refusing to perform unlicensed medical procedures, or refusing to perform unethical tasks. Termination based on an employee’s performance of public obligations includes serving on a jury and “whistle blowing” illegal activities. The last category of actionable termination includes cases involving discharges for filing a workers’ compensation claim, refusing to take polygraph tests, refusing to work for less than minimum wage, and filing a violation under the Wage and Hour Act. In addition to case law on wrongful discharge, there are numerous North Carolina statutes that protect employees from wrongful termination.
Simply because an employee could find recourse under federal or state statutory remedies does not automatically allow for a claim for wrongful discharge based on the public policy exception. If you are an employee and have been wrongfully discharged or terminated, or if you are an employer or business needing assistance with the North Carolina Wage and Hour Act or Fair Labor Standards Act, contact the civil litigation attorneys at Maginnis Law, PLLC. We regularly represent clients throughout the Triangle, including Raleigh, Durham, Chapel Hill, Cary, Apex, Knightdale, Morrisville, and Garner. Our firm offers a variety of billing arrangements such as hourly, retainer, and flat rate. To speak our civil attorneys, contact the firm at 919.526.0450, or send a confidential email inquiry using our contact page.
Harassing Text Messages, Phone Calls, Emails, or Faxes – North Carolina Telemarketing Consumer Protection Lawyer
June 4, 2013
Everyone has experienced unwanted phone calls, text messages, phone calls, or e-mails from companies marketing goods and services. Not only is this conduct harassing , but also potentially illegal, warranting money damages for the consumer. Whether you are an individual receiving unwanted contact, or a business engaging in such strategies wanting to ensure compliance with the various laws, contact the civil litigation attorneys at Maginnis Law, PLLC. Maginnis Law is a Raleigh civil litigation firm with attorneys handling all matters related to illegal marketing actions under the Telephone Consumer Protection Act. Contact the firm at 919.526.0450 or submit a new case inquiry here.
The Telephone Consumer Protection Act of 1991 (TCPA) is federal legislation designed to counteract the aggressive actions of telemarketers and collection agencies. The TCPA was designed to limit automatic calls, texts, and other contact placed by companies to landlines, cell phones, emails, and even fax machines. The Federal Communications Commission enforces compliance with the requirements, which include accurate caller identification, prohibitions against calling phone numbers on the “do not call” list, and using prerecorded voice calls to cell phones. The TCPA provides a private right of action including damages of $500 per violation. If a court determines the violation was “knowing and willful” damages can be increased to $1,500 per violation. In the aggregate, these statutory damages can be significant. In fact, since the introduction of the TCPA, there have been several multimillion dollar settlements against legitimate companies. As an example, a company settled for $17.1 million dollars for calling cell phones without permission and another company was sued for sending unsolicited faxes and lost at trial for $459 million! In addition to federal law, North Carolina has strict restrictions on telephone solicitors (telemarketers). Under N.C.G.S. 75-100, telemarketers must properly identify themselves at the outset of the call, provide an accurate address or phone number, immediately end the call at the caller’s bequest, and not call before 8:00 A.M. or after 9:00 P.M. Automated calls are only allowed by non-profits, political campaigns, government officials and research groups. Automated calls relating to soliciting a sale of consumer goods or services are prohibited from contacting North Carolina residents. Penalties under North Carolina law can significantly exceed the penalties under federal law. Companies should review their business practices to ensure they are in compliance with the broad provisions of the law. Regulations change frequently which could subject your business to significant damages. If you hire vendors to conduct marketing campaigns via phone, text, or fax, it is important to have a knowledgeable attorney draft all contracts to include warranties and risk shifting provisions to limit liability. If you have received unwanted phone calls, text messages, faxes, or emails, the broad protections afforded under both federal and state law may entitle you to money. For a free consultation, contact the civil litigation attorneys at Maginnis law, PLLC. We regularly represent clients throughout the Triangle, including Raleigh, Durham, Chapel Hill, Cary, Apex, Knightdale, Morrisville, and Garner. Our firm offers a variety of billing arrangements such as hourly, retainer, and flat rate. To speak our civil attorneys, contact the firm at 919.526.0450, or send a confidential email inquiry using our contact page.
May 31, 2013
Serious automobile accidents can cause a lifetime of physical pain and cost thousands of dollars in medical expenses and lost wages. If you or a family member has been injured in a car or truck collision caused by another person’s negligence, his or her automobile insurance company can be held liable for your damages. Not surprisingly, the insurance company is not always willing to voluntarily offer fair compensation. With serious collisions, you should speak with a knowledgeable Hoke County personal injury attorney. While the law offices of Maginnis Law are based in Raleigh, our attorneys practice throughout the state, and attorney Shawn Howard is from the Hoke County area. To speak with Shawn, call the firm at 919.480.8526 or send a confidential email inquiry using our contact page. Read more
May 28, 2013
In 2012 there were 38 Americans killed by dogs; 23 of these deaths were caused by pit bulls. Between 2007 and 2012, at least 15 children were killed by pit bulls. Put simply, if these dogs are not properly trained and raised, they can be extremely dangerous, even deadly. If you or a loved one has been seriously hurt by an American pit bull terrier or other dangerous animal, you have the right to hold its owner(s) accountable. To speak with a North Carolina dog bite lawyer, call the Raleigh law firm of Maginnis Law at 919.480.8526.
The statistics on dog bites show that the majority of serious attacks involve pit bulls. This chart shows fatalities caused by different breeds of dogs between 2005 and 2012. Ten of the deaths during that period occurred in North Carolina. Whether a death or serious injury is involved, the owner of the pit bull can be held liable, but this is usually difficult to do without the assistance of a knowledge personal injury attorney. With automobile accidents, you’ll usually be contacted immediately by the at-fault party’s insurance company with a chance to negotiate for fair compensation. This is not the case with pit bull attack cases. In many instances, you’ll need an attorney to file a lawsuit and conduct “discovery” to build the case against the owner and to discover whether there is applicable homeowners’ insurance coverage.
If you can successfully prove that a pit bull owner acted negligently, there are variety of damages that are available to compensate you for your harms. Those include damages for medical and pharmaceutical expenses, lost wages, pain and suffering, and permanent impairment or disfigurement. This last category is important, as dog bite attacks often times leave scars that never completely heal.
Maginnis Law handles all pit bull attack cases on a contingency basis. This means that you do not pay attorneys’ fees unless and until we obtain a jury verdict or settlement on your behalf. The firm offers free consultations and will travel throughout North Carolina to meet with you and your family.
If you have been seriously injured by a pit bull attack, or have a child that has been hurt, you should immediately contact an attorney. These cases can be complicated and should be investigated early. To speak with the Raleigh dog bite attorneys of Maginnis Law, contact attorney Shawn Howard at 919.480.8526 or send a confidential email inquiry using our contact page. The firm represents animal attack victims throughout North Carolina, including Raleigh, Durham, Cary, Greensboro, Chapel Hill, Fayetteville, Greenville, and Garner.
May 22, 2013
There are significant benefits to operating a franchise. Franchisors use other people’s money to expand the business. Franchise fees and ongoing royalties allow franchisors to grow without sacrificing control. The influx of capital funds marketing, improves quality of goods and services, and builds the brand. Franchisees benefit by having an established business model to follow, with a centralization of functions such as marketing, training and support, customer lead generation, websites, and call centers.
May 22, 2013
There are many types of “personal injury” cases and nearly all involve negligent, as opposed to intentional, conduct. The main exception is a civil battery claim. To prove a personal injury battery claim under North Carolina law, a plaintiff must establish that: (1) defendant intentionally caused a bodily contact with plaintiff; (2) the bodily contact caused plaintiff physical pain or injury; and (3) plaintiff did not consent to the bodily contact. If a plaintiff is successful on his or her claim, the compensatory damages recoverable in an assault and battery lawsuit include, but are not limited to, compensation for (a) medical and pharmaceutical expenses; (b) lost wages; and (c) physical and emotional pain and suffering. The plaintiff may also be entitled to recover punitive damages. These are damages a jury can award against a defendant who has engaged in willful and wanton conduct solely to punish him or her. If you have been the victim of an assault and battery in North Carolina, contact the Raleigh law firm of Maginnis Law at 919.480.8526. Our attorneys can help you through the process of recovering financial compensation to pay for your losses. Read more