FSP Fam Law
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What is the nature of marriage?
- civil status or relationship created by legal union of two persons as husband and wife
- duties and responsibilities toward each other
NC still recognizes what 2 CoA for breach of promise to marry?
- breach of K to marry
What are elements for seduction?
- intercourse induced by deception, enticement, or other artifice
- doesn't require promise to marry
What are elements for breach of promise to marry?
- mutual promises to marry
- one party refused w/o justification to enter into marriage
What are the traditional defenses to breach of promise to marry?
- married at time promises were exchanged and other party knew this
- illegal consideration
- misrepresented matters considered to be essential
What is SoL for breach of promise to marry?
What are premarital agreements and their requirements?
- made prior to marriage and in contemplation of
- attempt to alter or extinguish spouses' property and/or support rights
- must meet all requirements for valid K
- enforceable w/o consideration
- in writing and signed by both parties
A premarital agreement isn't enforceable if the party against whom enforcement is sought proves what?
- executed involuntarily
What are the legal requirements for marriage?
- marriage license
- consent of male and femal person who may lawfully marry
- solemnization by state authorized official
- at least 2 witnesses
What are the requirements for CL marriage?
- expression of intent
- holding out
- legal capacity
Does NC recognize CL marriage?
What are legal impediments to marriage?
- same sex partners
- consanguinity and affinity - first cousins/double first cousins
- lack of consent
- physical incapacity - impotence
- prior marriage still in force
What is a void marriage and who can attack it?
- has no legal effect
- attacked by party, state, interest 3P
What are some examples of void marriages?
In NC what kinds of marriages are void?
bigamous marriages and only if there are children
Is an incestuous marriage in NC void or voidable?
A voidable marriage is valid until when?
- the aggrieved party obtains an annulment
- if confirmed/ratified by the aggrieved party or if one of the parties dies then validity may not be questioned/attacked by anyone
What are the effects of annulment on alimony and property distribution?
- statutes may expressly give courts power to divide property or order support
- postseparation support and attorneys fees may be allowed assuming the spouse is otherwise entitled to alimony
What are the effects of annulment on the legitimacy of children?
- children born of bigamous or voidable marriages are considered legitimate as to both parents
- court power to make orders to the care, custody, and maintenance of minor children
What are the support obligations imposed on spouses?
- duty applies to both spouses - determine who is able to provide and place obligation on that person
- not enforceable during marriage
- necessaries doctrine
Liability for necessaries arises in what 3 primary situations?
- express or apparent authority to pledge
- neglects, fails, or refuses to furnish
- medical expenses beyond his sole ability to pay
What is the contractual authority and liability of spouses?
not liable for K of other spouse entered prior to marriage
Elements of criminal conversation
- P and spouse were married
- D had voluntary sexual intercourse with P spouse
Traditionally adultery has been proven showing what?
inclination & opportunity
Elements of alienation of affection?
- P and spouse were married
- some love and affection existed b/t them
- love and affection was alienated by wrongful and malicious act of D
- adultery not nec requirement
What is divorce from bed and board also commonly known as and is fault required?
- legal separation
- fault grounds must be proven
A separation agreement is legal and binding in all respects if what?
in writing and acknowledged by both parties before certifying officer
What rights can parties and not waive in separation agreement?
- waive - equitable distribution
- not waive rights to alimony during marriage OR abrogate/modify duty of spousal support
The NC DV Act is triggered if what?
- attempts to cause or causes bodily injury
- in fear of imminent serious bodily injury
- commits or threatens sexual offenses against a minor child in household
What is the relief available under NC DV Act?
- emergency relief - allogation of danger of serious and immediate injury; hearing w/in 5 days of notice to offender
- ex parte relief - clearly appears immediate danger; hearing w/in 10 days or order or 7 days of notice
What is the presumption of marital legitimacy/paternity?
- child born/conceived by woman while married is presumed to be legitimate child of woman and husband
- rebuttable by clear and convincing evidence that husband not father
The doctrine of estoppel may operate to confirm the presumption of marital paternity when mother's husband learns he isn't biological father but nevertheless does what?
- continues to support and hold out the child as his own
- doesn't deny paterntage in judicial proceeding
When may a mother be estopped from seeking child support from a different man?
deliberately allowed another man to believe he was father and has accepted child support from him
Who may bring an action for paternity of a child born out of wedlock?
child, mother, or state social service agency
In NC when may paternity actions be brought?
at any time before child reaches age 18
What is SoL on actions brougth by father regarding paternity?
What is the BoP for paternity?
clear, cogent, and convincing evidence
What are the rights of support to children born out of wedlock?
if there is a judicially enforceable right to support in favor of legitimate children then must also provide for support of illegitimate children in same manner
What are the inheritance rights of illegitimate children?
- same rights to inherit from mother and also from child's natural father if parternity properly shown
- NC - illegitmate child may inherit by intestacy from/thru acknowledged or adjudicated father
Parents are entitled to custody and direct education/medical care if both parents are what?
- living, competent, and fit
- no presumption in favor of mother as custodial parent
In NC do 3P have standing to seek custody or visitation?
not when family is intact UNLESS child abuse or neglect is alleged
Does NC still recognize a CL right of parents to control and discipline their children corporally?
yes if reasonable
What are the rights and obligations of both parents to support a child?
- absolute legal duty to support
- both parents are primarily liable
Payments ordered for support of a minor child shall be what?
amount as to meet the reasonable needs of the child for health, education, and maintenance
How long does the parental obligation to support a child last?
until child reaches 18
What is the effect of emanicpation?
child becomes an adult and need not be support by the parent
What is the obligation of child to support parent?
duty on adults who have sufficient income to support parents when parents are in danger of becoming a public charge
How are parental rights terminated?
- voluntary relinquishment of parental rights
- involuntary termination
What is the standard of proof for involuntary termination of parental rights?
- finding of parental unfitness proved by clear and convincing evidence
- best interest of child
Which court has jurisdiction over divorce proceedings?
What is the domicile requirement for divorce proceedings?
- domicile of one of the parties in state
- in rem jurisdiction - domicile of one of the parties w/in the state at time of filing (physical presence and permanent home)
What is the residency requirement for divorce proceedings?
- one of the parties must have resided in state for 6 months prior
- jurisdictional and can't be waived
According to the NC long arm statute, personal jurisdiction may be exercised over whom in divorce proceedings?
a person in action arising out of the marital relationship w/in NC so long as the other party continues to reside in NC
An in personam order for support requires what?
- proper service of process
- sufficient min contacts
What venue is proper in divorce proceeding and child custody?
- county where P resides
- CC - county where child resides or is physically present or where parent resides
What are the grounds for divorce from bed and board?
- alcoholism or addiction
What are the elements for abandonment?
- one spouse brought cohabitation to an end
- w/o consent of other spouse
- w/o intent of renewing it; and
- w/o justification
What are NC no fault grounds for divorce?
- continuous separation for 1 year
- separation for 3 or more years w/o cohabitation by reason of incurable insanity of one spouse
What are defenses to in fault based divorce actions?
What is cruelty?
- cruel or barbarous treatment that endangers the life of other spouse
- psychological as well as physical
- course of conduct
What is indignities?
- one spouse offers such indignities to the other spouse as to render his condition intolerable and life burdensome
- course of conduct
What is recrimination?
where both spouses are guilty of fualt grounds, court will deny a divorce to either
What is collusion?
agreement b/t spouses whereby one of them wrongfully asserts that the other has committed a breach of marital duty in order to obtain a divorce
What is connivance?
- conduct by P facilitating the commission of a marital wrong by D
- marital wrong actually committed
What is condonation?
- one spouse knowingly forgives the other's marital wrong so that the marital relationship is continued
- if conditional then not precluded from raising initial misconduct if condition violated
What does reconciliation do to a no fault divorce action?
- restarts 1 year waiting period
- voids unexecution portions of separation agreement
- changes date for accumulation of and valuation of marital property
Is equitable distribution allowed pursuant to a divorce from bed and board?
no but possession of marital home may be awarded as part of the decree
Post separation support must be paid until the earlier of what?
- date specified
- entry of an order
- entry of judgment
- termination of postseparation support due to cohabitation or divorce
Factors for post separation support?
- accustomed standard of living
- present employment income both parties
- income-earning abilities
- separate and marital debt
- expenses reasonably nec to support each spouse
- respective legal obligations
What constitutes marital misconduct?
- illicit sexual behavior
- involuntary separation due to criminal conduct
- malicious turning out of doors
- reckless spending of income
- willful failure to provide nec subsistence
What rights may the divorce decree determine?
- division of property
- child support, custody, and visitation
What is the 3 step process for equitable distribution?
- what property the parties own that is subject to it
- net value of such property
- what distribution is equitable
What 2 types of property are subject to equitable distribution?
- marital property
- divisible property
What is separate property?
all real and personal property acquired by a spouse either (1) before marriage or (2) by bequest, devise, descent, or gift
Does property acquired in exchange for separate property remain separate property?
yes unless intention to make it marital property is expressly stated in the conveyance
What is marital property?
- (1) all real/personal property acquired by either or both spouses during marriage and presently owned; and
- (2) all vested/non-vested pension, retirement, and other deferred compensation rights
What is the source of funds doctrine?
- nature of property doesn't depend solely on how title is taken
- property is acquired as it is paid for therefore may become "dual nature" property
What is divisible property?
all real and personal property
When is the valuation of divisible/marital property to be determined?
date of separation
How do marital debts factor into the valuation of marital property?
must also be valued and the net value of marital property by subtracting the debts from asset values
What is the presumption regarding equitable distribution?
equal distribution of marital and divisible property is equitable
What are the dividing factors considered if equal distribution determined not to be equitable?
- (1) income, property, liabilities
- (2) any obligation of support
- (3) duration of marriage & age and physical/mental health of both parties
- (4) need of custodial parent
- (5) expectation of pension, retirement, or other deferred compensation
- (6) contribution to spouse education
- (7) contribution to increase in value of separate property
- (8) liquid/nonliquid character of all marital/divisible property
- (9) difficulty of evaluating
- (10) tax consequences
- (11) any other factors
What is the presumption regarding in-kind distributions?
in-kind distribution of marital or divisible property is equitable that may be rebutted by (1) greater weight of evidence or (2) evidence that property is closely held business entity or otherwise not susceptible to division in kind
What is a distributive award?
- payments that are payable either in lump sum or over a period of time in fixed amounts
- doesn't includ alimony
What may not be considered in property division?
marital fault unless party to waste or convert marital property after separation
When do stock options become marital property?
vested and exercisable
Can a court consider a party's future inheritance under the will of a person not yet deceased as an asset or factor for purposes of equitable distribution?
What is the difference b/t vested and unvested pension and retirement benefits?
where vested the court may award a larger portion of other assets to the party not receiving the benefits and a smaller share of other assets to the party entitled to receive the benefits
How may pension and retirement benefits be made payable?
- lump sum
- over period of time in fixed amounts
- by appropriate domestic relations order
How are pension and retirement benefits awards determined?
- proportion of time of employment that earned the benefits while marriage existed
- total amount of time employed
No award to the non-EE spouse may exceed what percentage of pension/retirement benefits?
- 50% unless
- (1) other assets insufficient
- (2) difficulty distributing any asset/interest in business, corp, or prof
- (3) economically desirable
- (4) more than one pension/retirement system involved
- (5) both parties consent
How are personal injury awards classified in equitable distribution?
- compensation for economic loss - marital property
- pain and suffering - separate property
The court shall grant alimony upon a finding of what?
- one spouse dependent
- other spouse is supporting
- award is equitable after considering all relevant factors
What are the relevant factors for making an alimony determination?
- (1) marital misconduct
- (2) relative earnings and earning capacities
- (3) age, physical, mental, and emotional conditions
- (4) amount/sources of earned & unearned income both
- (5) duration of marriage
- (6) contribution of one spouse to other's education
- (7) custody of child
- (8) standard of living
- (9) relative education of spouses
- (10) relative assets and liabilities of the spouses
- (11) property brought into marriage
- (12) contribution of homemaker
- (13) relative needs of spouses
- (14) tax ramifications
- (15) any other factors
What is the effect of illicit sexual behavior on alimony?
- absolute bar, regardless of need, unless supporting spouse also committed illicit sexual behavior
- both guilty then in court's discretion
What is the standard for determining child custody and visitation?
- best promote the interest and welfare of the child considering all relevant factors including
- (1) acts of DV b/t parties
- (2) safety of the child
- (3) safety of either party from DV by the other party
What is the presumption regarding custody as b/t mother and father?
none and each has equal access
What is the presumption regarding custody as b/t parent and 3P?
presumption in favor of parent
What different orders of custody can court grant?
- custody to 2 or more persons
How much weight are the wishes of the child given regarding custody?
considerable weight provided child is of sufficient age (10-12 years old)
What is the effect of decree of absolute divorce?
terminates the right of a spouse to a equitable distribution UNLESS asserted prior to judgment
When may an order for alimony be modified or vacated?
at any time upon motion and a showing of changed circumstances
What does modification of child custody order require?
- substantial changed circumstances
- best interest of child
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