NC Fam Law

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NC Fam Law
2012-07-17 14:29:15
NC Fam Law

Family Law
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  1. Premarital Agreements must be
    In writing and signed by both parties, no consideration needed and a childs right to support cannot be adversely affected
  2. A pre premarital agreement is not enforceable if
    • party did not execute agreement voluntarily or
    • agreement unconscionable at time of execution and complaining party was not provided a fair and reasonable disclosure 
  3. Breach of promise to mary
    Contrac action with tort like damages brought against a party who, without justification, refuses to carry through with his promise to marry the plaintiff
  4. Ownership of engagement ring
    law views the engagement ring as implicitly conditioned on marriage, so it belongs to the donor in the event of no marriage
  5. Requirements for Valid Marriage in NC
    License and Ceremony
  6. Ceremony elements
    • 1. consent of a male and female person who may lawfully marry presently  to take each other as husband and wife
    • 2. expressed in the presence of each other 
    • 3. Precense of ordained or authorized ministor of any religious denominatin, or magistrate, or without officiating if solemnization recognized by religious denomitation, or by federally recognized indian tribe/nation
  7. Age to marry
    18, or 16-18 with parental consent or 14-16 under limited circumstances
  8. second marriage presumption
    the presumption of the validity of a second marriage when one spouse has been married before
  9. Criminal Conversation
    • Marriage between spouses and
    • evidence of voluntary sexual relations between defendant and plaintiff's spouse during course of the marriage 
  10. standard test for circumstantial proof of adultery
    reuquires proof of inclination and opportunity
  11. alienation of affections
    • requires
    • 1. geuine love and affection (happily married)
    • 2. love and affection destroyed
    • 3. wrongful and malicious acts of defendant caused loss   
  12. Civil domestic violence statute covers
    • 1. current/former spouses
    • 2. current/former household members
    • 3. parents and children, grandparents and grandchildren, persons acting as parents to a minor child
    • 4. persons with a child in common or
    • 5. persons of the opposite sex who are or were dating    
  13. Acts covered by Civil Domestic Violence Statute
    • 1. attempting to cause or causing bodily injury
    • 2. placing another person, family, or houshold member in fear of imminent serious injury
    • 3. continued harassment causing substantial emotional distress
    • 4. committing a sexual offense against the aggrieved or their child   
  14. Grounds for voidable marriage
    • 1. nearer of kin than first cousins
    • 2. under 16
    • 3. marriage entered into upon representation of pregnancy, parties separate within 45 days and remain separated without child for 10 months
    • 4. either party is physically impotent
    • 5. incapacity
  15. Elements of abandonment
    • 1. One spouse brings cohabitation to an end
    • 2. without justification
    • 3. without cosent of other spouse and
    • 4. without intent of renewing the cohabitation   
  16. Divorce from bed and board
    court may grant if either party abandons the family or maliciously turns the other out of doors, cruel or barbarous treatment, drug abuse, indignities or commision of adultery
  17. defenses to divorce from bed and board
    recrimination, condonation, connivance and collusion
  18. Grounds for Absolute Divorce
    incurable insanity or separation for the statutory 1 yr period
  19. Incurable insanity
    spouse must have lived separate and apart for 3 yrs as a result of the incurable insanity, spouse must have been institutionalized for the period and adjudicated insane during period or otherwise been incurably insane for the period
  20. Elements for the separation absolute divorce
    • moving party must prove:
    • 1. residency
    • 2. marriage
    • 3. separation for the 1 yr preceding the filing and
    • 4. intent on the part of one of them to not resume the marital relationship     
  21. separation requires
    actually living separate and apart, separate areas of the house will not suffice
  22. Effect of reconciliation
    • restarts the one year period
    • voids separation agreement and
    • may determine the date at which marital assets are valued  
  23. Post separation support payable until earliest of
    date specified in order for post-separatioin support, entry of an order awarding/denying alimony, dismissal of alimony claim, entry of judgment of absolute divorce with no alimony claim pending, termination due to cohabitation, remarriage or death of either spouce
  24. Post separation requirements
    spouse is dependent and other is supporting, and award is equitable after considering all factors, including marital misconduct
  25. Substantive Requirements of Alimony
    Spouse is dependent and the other is supporting and an award is equitable upon court's consideration of all relevant factors
  26. Marital misconduct
    • illicit secual behavior
    • involuntary separation as rusult of criminal act
    • abandonment
    • malicious turning out-of-doors
    • cruel barbarous treatment
    • indignities
    • reckless spending, waste, or concealment of assets
    • substance abuse
    • willful failure to provide necessary subsistence        
  27. Upon aplication for equitible distribution court must
    • identify property and debts of parties
    • classify each piece of property and debt as marital, divisible or separate 
    • determine the net market value of the property
    • distribute the marital and divisible property equitably  
  28. Divisible property classification
    • 1. passive appreciation/diminution of marital and divisible property after separation but before distribution
    • 2. property rights received after separation
    • 3. passive income from marital property received post-separation
    • 4. increases/decreases in marital debt  
  29. Separate Property
    • property aqcuired before marriage
    • inherited and gift property
    • exchange of separate property
    • increases in value
    • income from separate property
    • licenses and professional degrees
    • disability payments
    • post-separation changes in marital property       
  30. Court has exclusive continuing jurisdiction over child custody matters until
    • a court determines that neither the child nor parents continue to reside in the state OR
    • a court in the state that entered the initial order determines that the child no longer has a significant connection with the state 
  31. In order to modify custody decree
    moving party must show changed circumstances and that the change would be in the best interests of the child
  32. changed circumstances (custody)
    requires substantial change of circumstances affecting the welfare of the child

    remarriage, relocation or increase/decrease in incomes dont suffice 
  33. Amount of child support
    must be sufficient to meet the reasonable needs of the child for health, education and maintenance having due regard to accustomed standard of living of the child and parties