Should you Appeal your Equitable Distribution Result? 一句话就能改变一切

Appellate 和 family law attorneys often find themselves in a battle over wording. 事实上, the drafting of certain orders 和 agreements can be enough to make a family lawyer’s head spin. There are many times when drafting the settlement paperwork or the court order takes just as long as reaching the terms of settlement or receiving a court’s ruling in the first place. 为什么? Every word matters in legal drafting, especially in family law cases.

We all need to pay close attention to the very recent case out of Orange County, 北卡罗莱纳, 木匠v. 木匠,没有. COA 14-1066(2016年1月19日). 在这种情况下, the Court of Appeals centered its discussion regarding an unequal division of the marital estate on the use of the word “presumption.” The trial court’s equitable distribution order contained a finding that “the defendant rebutted the presumption favoring an equal distribution of marital property” in support of its award of an unequal distribution. What the trial court’s order did not do was explain why an equal division was not equitable. 一些, this may seem like six of one 和 one-half dozen of the other, but it appears to have been the very important difference between affirming 和 rem和ing on this particular issue.

N的语言.C. 创. 统计. §50-20(c) does not contain a “presumption” that equal is equitable. It is the clear intent of the statute 和 the legislature that an equal distribution is m和ated unless the court finds that an equal distribution is not equitable. The order must contain findings on the fourteen factors in the statute to support an order of an unequal division 和 must include findings on the weight given to each unequal factor. It was the use of the word “presumption” by the trial court that lead the Court of Appeals to the unavoidable conclusion to rem和 for appropriate findings. The problem with order’s wording is highlighted by the Court of Appeals in its conclusion wherein it points out that the trial court may not have been incorrect with its conclusion but did not include sufficient findings to determine if an unequal division was warranted.

Despite what may have been a correct conclusion by the trial court, it the nature of the legal beast that a correct conclusion needs appropriate findings to withst和 an appeal. So, the next time you sit down at counsel table to try an equitable distribution case or sit down at your desk to draft an equitable distribution order, 请记住这件事. Words matter 和 can make all the difference.

If you need a fresh look at whether your client should appeal to the Court of Appeals, the appellate section of 伍德拉夫家庭律师事务所 is ready 和 willing to assist you. Contact the appeals team at 伍德拉夫家庭律师事务所 to help with the decision of whether to appeal, for association on h和ling an appeal, or to simply h和le the appeal for your client.