Family Law - North Carolina

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ronna009
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Family Law - North Carolina
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2013-04-30 08:52:15
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Family Law North Carolina Common
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Family Law - North Carolina & Common Law
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  1. Jurisdiction
    - SMJ
    -PJ
    • - SMJ: Does the Court have authority to hear this case?
    • - PJ: Does Court have authority over the person  so as to issue judgment over them?
    •    - Domicile
    •    - Minimum Contacts
    •    - if not... cannot impose judgment absent party's consent or waiver
    •       1) Alimony
    •       2) child support
    •       3) attorney's fees
  2. Breach of Promise to Marry
    -Elements-
    • In States that recognize Cause of Action:
    • Elements:
    • 1) Mutual Promises to Marry
    • 2) Breach of that promise
    • 3) without legal justification

    • ***Note: Not recognized as a cause of action in majority of States BUT STILL recognized in NC***
  3. Breach of Promise to Marry 
    - Defenses-
    • - Illegal Consideration
    • - Unable to get a valid marriage license
    • - SOL: 3 Years
  4. Alienation of Affection
    - Elements
    - Defenses
    • Elements: 
    • 1) valid loving marriage
    • 2) Third party willfully & maliciously engaged in behavior to alienate affection
    • 3) Conduct was proximate cause that affection was alienated

    • Defenses:
    • 1) marriage was not loving
    • 2) no affections 

    • ***NOTE THIS DOES NOT REQUIRE INTERCOURSE BETWEEN SPOUSE & PARAMOUR***
    • - In NC, Can arise after separation as long as marriage is still loving
  5. Criminal Conversation
    - What is it?
    - Brought Against?
    - Elements?
    Action brought against Paramour (3rd Party)

    • Elements: 
    • a- a valid marriage 
    • b- D had sex (voluntary) with spouse of P

    ***Lack of knowledge of 3rd Party NOT a defense***

    ***Not a Criminal Action & Not conversation -->It's a strict liability tort & adultery***
  6. Criminal Conversation / Alienation of Affections

    - Punitive Damages
    • In order to recover punitive damages, the Plaintiff must show that there were aggravating factors.
    • In an alienation of affections claim, there must be malice above and beyond the level of malice required to obtain compensatory damages.
    • Such aggravating factors include conduct by the Defendant that is willful, wanton, aggravated or malicious. In past cases, the courts have held that the Defendant flaunting his or her relationship with the Plaintiff’s spouse in front of the Plaintiff was an aggravating factor, as has been the Defendant calling the Plaintiff’s home to discover the whereabouts of the Plaintiff’s spouse.

    In a criminal conversation claim, the same sexual misconduct necessary to establish the tort of criminal conversation may also sustain an award of punitive damages. However, the evidence must show reckless conduct in order to justify punitive damages. Therefore, as with alienation of affections, some additional egregiousness must be shown.
  7. VOID Marriage
    - What is it?
    - Who can challenge?
    - Types?
    - Can it be ratified?
    It is: a Detestable marriage that is against public policy & is VOID from inception meaning it NEVER EXISTED, NEVER HAPPENED!

    Challenger: Usually parent/guardian, one of the Parties to the marriage

    • Types: In Majority of states=
    •     1-too young
    •     2-Bigamy; (In NC, ONLY a BIGAMIST MARRIAGE)

    Ratified?: Can NEVER be ratified as it is void from inception
  8. Voidable Marriage
    - What is it?
    - Who can challenge?
    - Types?
    - Can it be ratified?
    - "defective marriage"  has a CURABLE DEFECT.  It is considered a Valid marriage unless successfully challenged, if successful challenge results in annulment (VOIDABLE marriages will not completely undue effect marriage... i.e. reinstate alimony)

    - Can be challenged by one of the parties or a guardian

    -TYPES: One of the parties under 16, First Cousins, Double First Cousins, impotent, mentally incompetent

    - Once the "disability" is removed, AND there has been no challenge to the marriage, it is ratified

    *** Gay Marriage in NC is neither VOID nor Voidable as it is not recognized as a marriage at all ***
  9. - Consanguinity
    - Affinity
    - Bigamy
    - Same Sex
    Consanguinity: Relationship by blood (half-blood relations treated the same as full-blood relations)

    Affinity: relationship by marriage, not by blood (in-laws)

    • Bigamy - Marrying someone while still married to another person.
    • IN NC, the most recent marriage is presumed to be the valid marriage (2nd marriage)


    Same Sex: No state is required to accord full faith & credito to another state's marriage if it's same-sex. (marriage & spouse for federal purposes only refer to relationships of the opposite sex )
  10. Barrier to Marriage: Age Requirement
    - 18 & over, generally no consent needed (mental capacity, etc.) 

    - Ages:16 - 18: need parental consent or a court order

    - Ages: 14 -16: Voidable by underage party prior to coming of age;  Not voidable if girl is pregnant

    - Under 14 --> can be annulled by parent/guardian

    Note: marriage of a minor acts to emancipate the minor

    Marriage too young is not "absolutely void", unless specific provision declaring such!! Otherwise it is voidable at the election of the party that is under the age of legal consent & can be exercised at any time before reaching the age of consent.
  11. Solemnization
    - Requirements
    - Two witnesses

    - Affirmation by minister

    • - Marriage license or a $200 fine imposed on minister 
    • Carabette: Marriage is not void for lack of license / Strong opposition to void marriage entered into in good faith followed by cohabitation
  12. Freedom to Marry
    - Zablocki
    - Denying marriage license because of unpaid child support was an unconstitutional restraint on liberty (the freedom to marry)
  13. Common Law Marriage
    - Elements

    • 1) Agreement of marriage at the present time
    • 2) Competency
    • 3) Followed by cohabitation
    • 4) Holding oneself out to be married
    • 5) Gaining reputation as being married

    Public Policy: prefer marriage over illicit relationships

    • ***If resident of state that recognizes Common Law marriage & moves to a state that does not, New state will recognize marriage under the Full Faith & Credit Clause***
    • - Not recognized in North Carolina

  14. Proxy Marriage

    Covenant Marriage
    1) Proxy: When one party appears through 3rd person (Not recognized in NC)

    2) Covenant: Marriage that has additional promises & requires a heightened standard to be granted a divorce
  15. Divorce from Bed & Board
    - What is it?
    - Justification for Divorce from Bed & Board?
    • - Legal Separation
    • - Must show fault
    • - No impact on Support obligations
    • - No impact on control of Property

    • NC says:
    • - Abandonment
    • - Malicious turning out of doors
    • - Cruel or barbarous treatment
    • - Indignities rendering their condition intolerable
    • - Excessive alcohol and drug use
    • - Adultery
  16. Annulment
    - Effect if granted
    - Burden of Proof
    -
    Effect of annulment: Erases bonds of marriage as if Marriage never existed.

    Requires Clear & Convincing evidence

    **Most states have a time limit on annulment action**
  17. Death & Annulment
    1- As it pertains to Void marriages
    2- As it pertains to voidable marriages
    3- Enoch Arden Statutes
    - IF VOID: annulment still stands because marriage was void at inception (they were never really married)

    - If Voidable: Death will terminate the ability to have the marriage annulled.

    - If spouse disappears, abandoned spouse will be granted a divorce or legal exemption after seven years and be able to remarry.  (missing spouse can be declared dead)
  18. Divorce
    - Effect if granted
    • Effect: 
    •    - Severs bond of marriage
    •    - Distributes Property
    •    - Decides alimony
    •    - Determines Custody & Support Issues
    •    - Clear-cut and statutory "to-do's" upon divorce
  19. Marriage: Fraud
    - NC RULE
    - Fraud must effect...
    - Time limits?
    - Insufficient to annul marriage
    - NO marriage followed by cohabitation and the birth of issue shall be declared Void except for bigamy.

    - Fraudulent representation must bear directly upon marriage & health & happiness of party imposed upon.

    - Upon discovery of Fraud or condition that may cause annulment, party must take action or will waive the fraud (via accepting benefit of marriage after discovery of fraud)

    • - Marriage will not be annulled for
    •    Morality
    •    Habits
    •    Temper
    •    Money, or lack there of
    •    Physician condition
    •    Chastity (except in the case where the husband is induced to marry because he believes the spouse is pregnant with his child)
  20. Marriage: Fraud--> Sterility & impotence

    - Elements
    Both conditions can create a Voidable Marriage.

    • Elements:
    • 1) Sterility before marriage 
    • 2) Sterile Spouse knows of condition
    • 3) false representation of fertility
    • 4) Marriage entered into upon representations
    • 5) Separation upon discovery of sterility


    • - Historically the reason for marriage = procreation.
    • - Pleasure
    • - Impotence is grounds for annulment, but is voidable marriage... not void
  21. Marriage
    - in Jest
    - while drunk
    In Jest: Public policy = annulment

    While Drunk: lack of capacity to marry absent ratification upon lucidity. (must analyze the degree of intoxication... usually must rise to a level where person cannot walk)
  22. UMDA
    1- What is it?
    2- authority?
    3 - UDMA says, annul if:
    • 1- It is the Uniform Marriage & Divorce Act
    • 2- Not accepted as law
    • 3-Annul if:
    •   No capacity
    •   Induced by force/duress
    •   Fraud on essentials of marriage
    •   No physical capacity to have consummate marriage
    •   No consent
    •   Marriage prohibited
    • Invalidity is not sought after death of one of the parties to the marriage
  23. Fault-Based Divorce
    1- Grounds
    2- Defenses
    3-What is NC?
    1- Grounds: Adultery, Desertion, Habitual Drunkenness, Cruel& inhuman treatment

    • 2-   Unclean hands   Condonation(forgiveness) 
    • Collusion(creating untrue facts w/ spouse)  Connivance(consent of adulterous behavior...   watching???)

    3- NC is a No Fault Divorce State
  24. NO FAULT DIVORCE
    1- Grounds
    4- NC's take
    • 1- varying grounds: Irreconcilable differences, 1 year separation, 6 month separation, incompatibility, no requirement 
    • 2- ? depends on the state
    • 3- No fault divorce state

    • 4- a) 1 year separation
    •     isolated acts of sexual intercourse will not
    •     stop the clock
    • b) Incurable insanity
    •      Insanity must be sustained for 3 years;  
    •      If sanity regained during period within 3 years,       clock resets!
  25. NC Divorce Requirements
    Residency Requirement for Marriage: Do not have to be a resident of North Carolina.

    • Residence Requirement for Divorce
    • - Requires that one of the parties to the divorce has resided in NC for 6 months
    • - complaint must allege 
    •    a) one year separation 
    •    b) one party has lived here for 6 months
    •    c) filed within County where one party resides
    •    d) MUST BE "VERIFIED" aka signed or will be dismissed
    •    e) Whether you have children
  26. NC Divorce
    - Effect of No response to complaint for divorce
    • - Allegations are deemed denied if no responsive pleading
    • - Summary Judgment can be used to determine divorce by non-testimonial means
    • - Can obtain judgment of divorce by default
  27. NC Divorce - Effect of Court Granting Absolute Divorce
    • - Either party may remarry immediately
    • - Destroys right to claim alimony if not pending at time of divorce
    • - Destroys right to equitable distribution if not filed prior to Absolute divorce
  28. Divorce - Collusion rule
    Divorce - Religion
    Collusion: If divorce was granted by collusion, Court will vacate the divorce.

    Religion: No reason why state cannot regulate
  29. Comity 
    - Application
    - Recognition
    - Applies to divorces & marriages that take place outside of the U.S.

    • - Courts not required to recognize foreign decrees under comity.
    •    Questions:
    •    1- does recognition violate public policy?
    •    2- Does it prejudice rights of citizen here?
    •    3- Does recognition preclude rendering complete justice?

    Ramadan: A divorce obtained in another jdx shall be of no force or effect in this state if both parties were domiciled in this state.
  30. Analysis for Bigamy
    • 1 - analyze 2nd marriage... is it valid?
    •       - valid license? --> if not, the minister will have to pay fine but marriage is likely still valid)
    •       - solemnized (performed by minister, notary or magistrate?)
    •       - Two Witnesses
    • 2- if 2nd marriage is valid, Burden shifts to P to attack the validity of the his marriage
    •    a- Must show 1st marriage was valid
    •    b- Must show that 1st marriage was not dissolved
  31. Personal jdx
    • 1- Consent
    • 2- Waiver
    • 3- Failure to object
    • 4- Purposeful availment of protection of courts
    • 5- Presence in State (unless induced D into state in order to serve process)
    • 6- Minimum Contacts --> Long arm statute: Due Process Requires: reasonable notice & opportunity to be heard (if out of state party appears at hearing & does not object... he will not be able to challenge Pjdx- Sherrer)
  32. Jurisdiction: Child's Domicile
    Generally, kids take domicile of parents.

    kids born out of wedlock --> domicile of mother

    ***usually this is enough to decide custody... but not child support***
  33. Child Custody JDX
    3 types
    • 1) Physical presence of minor child
    • 2) In personam personal jdx over both parties
    • 3) Status Theory- Wherever the child was domiciled has jdx even if no jdx over the other parties.  Shaffer

    Status Theory also extends to: protective orders & Divorce actions as these causes of action are not for AFFIRMATIVE RELIEF.

    NC Does not regcognize Status theory jdx for protective orders at this time.
  34. North Carolina Jdx over CHILD CUSTODY
    NC has PJdx in regards to Child CUSTODY if:

    • - per the Status Theory & UCCJEA,
    • - the child has lived in NC for 6 months
    • - No other court exercised jdx over custody proceedings (if so must determine if other court had jdx... if they did, continuing jdx applies)
  35. North Carolina Jdx over CHILD SUPPORT PROCEEDINGS
    • NC has PJdx in regards to Child Support if:
    • - payor served in NC- Payor domiciled in NC
    • - Payor is engaged in substantial activity within NC
    • - If Child support arises out of a marital relationship within NC
    • - Payor is residing in NC w/ child
    • - Payor is residing in NC and paying support/expenses
    • - Child was conceived in NC

    & no other court has issued Child Support order, if so may need to modify within that state
  36. NC on Child as a Witness
    NC on Child as a witness

    a.Court may question child in open court

    b.Must have consent of all parties for judge to interview w/o attorneys

    c. Children can testify – no age limit

    d.Must have consent to interview in camera (even with attorneys)

    e.Otherwise, kid goes up on the stand

    f.But, failure to object to in-chambers interview found to be “informed acquiescence”

    • g.Failure to object to in-chambers interview & failure to request that interview is recorded
    • precludes claim of error
  37. Continuing Jurisdiction
    - How long does it last?
    - Reasoning?
    - General Rule: State with jurisdiction will generally retain jurisdiction forever.

    - Ongoing personal jurisdiction justified in that obligor purposefully availed himself of privilege of the forum court in first proceeding.
  38. North Carolina Jdx over Divorce & Divorce from Bed & Board
    • - One Party must live in NC for at least 6 months prior to filing.
    • - Jdx over other party: Status Theory (Pjdx not required)
    • **must properly notice & serve to comply with status theory**
  39. North Carolina Jdx over Property Distribution & Alimony
    In order for NC to have jdx in property distribution & alimony proceedings, NC must be able to exercise Personal Jurisdiction over the party (payor of alimony, etc.).
  40. Federal Jdx over Domestic Relations
    The domestic relations exception divests the federal courts of power to issue:

    • 1) divorce
    • 2) alimony
    • 3) child custody decrees

    Note: Fed. Court can hear suits in tort related to domestic relations.  Anken
  41. JDX & Recognition of Foreign Divorces
    - Comity applies, so States "MAY" recognize & exercise foreign divorce decree if:

    • 1) one party is domiciled in foreign nation
    • 2) Intends to remain in foreign nation
    • 3) Compliance with service pursuant to Hague Convention

    **for NC to exercise jdx, the other party must be domiciled in NC**
  42. North Carolina Subject Matter Jdx
    - Child support
    - Custody
    - Absolute Divorce
    - Equitable Distribution
    - Alimony
    - Domestic Violence
    • - Child Support: 
    •    1) children must be under 18
    •    2) Another State doesn't have a controlling order

    • - Custody
    •    1) 
    •    2) Another State doesn't have a controlling order

    • - Absolute Divorce
    •   1) 1 year separation
    •   2) 1 party domiciled in NC for 6 months prior to filing
    •   
    • - Equitable Distribution
    •   1) Living Separate and apart
    •   2) Action filed prior to finalization of absolute divorce

    • - Alimony
    •   - none

    • - Domestic Violence
    •   - Long Arm Statutes
  43. Child Custody in NC
    - Legal Standard
    - Legal Custody
    - Physical Custody
    - Split Custody
    a.Standard: Best interest of the minor children                                  

    • b. Legal Custody: legal right to make major decisions 
    • **Note Legal Custody can be shared as Joint between the parents regardless of Physical Custody**

    • C. Physical Custody: % of time allowed to each parent
    •    a. JOINT requires at least 40% be spent with each parent... less than 40% is considered visitation
    •   ***physical custody affects award of child support***
    •    b. Split Custody - When one parent has custody of one child, and other parent
    • has custody of the other child.
  44. Tender Years Doctrine
    Common lawdoctrine presumes that during a child's "tender" years (generally regarded as the age of four and under), the mother should havecustody of the child.

    **NC does not follow this doctrine... NC Follows "best interest of the child"
  45. Child Custody Standard & Considerations
    - Legal Standard: Best Interest of the Child

    • - Court considers: Custody Evaluations but does independent analysis;  NOt required to adopt recommendation on evaluation. 
    • - Preference of the child is considered but is not the ONLY consideration
  46. NC Child Custody
    - Requires that parents enter: 
    - Reasons that court will waive mediation
    - Requires: Custody Mediation

    • - Reasons courts will waive mediation:
    •     1-a showing of undue hardship to a party
    •     2- allegations of abuse or neglect of the minor child
    •     3-allegations of alcoholism, drug abuse, or domestic violence between the parents in common
    •     4-allegations of severe psychological, psychiatric, or emotional problems.
    •     5-Where a party resides more than 50 miles from court, such distance may be considered good cause.
  47. Visitation: 
    - Court Restrictions on Parental Visit

    - NC Rule on Restricting Visitation

    - Effect of child declining to spend time with a parent
    - Court cannot determine the "value" of various activities.  Court can order certain diets & routines but not activities

    - Must have a finding of conduct that warrants restricted visitation or that exercise of visitation is detrimental to interests of the child

    - Generally Children are not free to decline spending time w/ a parent
  48. - Jdx to modify Custody

    - NC Modification Test
    - Court that issued custody order maintains continuing jdx over visitation and may modify or vacate orders at any time.

    • - Court can modify orders when:
    •    1) Substantial Change of circumstances since last order
    •    2) impacting welfare of minor child
    •    3) Impact can be beneficial or detrimental
  49. GrandParents - CUSTODY
    - GP must show:  
    - Then Court will look at:
    • 1- BOTH Parents are unfit OR that they have acted inconsistent with their constitutionally protected status.they have opened up their zone of privacy to 3rd parties)
    • 2- THEN Best interests of the child (must prove #1 to get to #2)
  50. Grandparents -- VISITATION
    • Must show that family is NOT intact
    • Meaning: Show that parents are in the middle of a motion to modify custody and that the motion is still pending.
  51. Domestic Partner Custody/Visitation
    N.C says:Parent/child relationship is necessary to have standing

    • By Clear & Convincing Evidence, the 3rd party must show: 
    • - 3rd party and child have established emotional ties (2+ years and a parent/child relationship)
    • - Must not interfere with custodial parent & child
    • - Court must find that visitation is in best interest of the child
  52. Income Shares Model - Child Support Calculation
    • - Majority Approach 
    • - North Carolina uses this model

    • Computes:
    • - Both parties income
    • - Estimate of child costs
    • - Pro-rate based on % of income
    • - Gives same proportion of income as if family was still together
  53. Percentage-of-Income Model - Child Support Calculation
    BASED ON:

    • - Percentage based on number of children
    • - Percentage applied to the noncustodial parent's income

    **Custodial Parent's income is not considered at all***
  54. Child Support Deviation
    - Court must show:
    • 1) Amount of support required by State guidelines
    • 2) How the order varies from the guidelines
    • 3) Why it's necessary to deviate from the guidelines.
  55. NC Imputation of Income
    • - Voluntary Unemployment/underemployment
    • - Purpose was to avoid or minimize his/her child support
    • - Parent's bad faith / deliberate suppression of income
    • **Bad Faith with PURPOSE of lowering child support REQUIRED**

  56. Doctrine of Necessaries

    - Exception?
    Spouse is liable to those who supply husband/wife with essential care.

    Exception: Have to give the care provider notice of separation before treatment in order to be relieved.
  57. Alimony
    • 1-Length of marriage
    • 2- Standard of living during marriage
    • 3- decide who is dependent /supporting spouse
    • 4- Spouse ability to pay / Spouse unable to meet needs
  58. Spousal Support : Rehabilitative Alimony
    - Purpose
    - To assist one in reclaiming employment skills outside the home which have atrophied during marital relationship.
  59. Alimony
    - tax implications
    • - tax deduction for the payor
    • - taxed as income for the recipient
    • - must be designated as alimony or IRS will treat as child support & if alimony terminates within 6 months of child reaching 18 it results in a rebuttable presumption that it is child support.

    Child support is neither a deduction nor taxable
  60. Post Separation Support
    - Can parties raise issue of Fault?
    • - Supporting Spouse: YES 
    • - Dependent Spouse: Only if raised by supporting spouse first
  61. Post Separation Support: 
    Terminates upon:
    • - Date in order
    • - Order awarding/denying alimony
    • - Dismissal of Alimony Claim
    • - Entry of Absolute Divorce/if no alimony claim is pending
  62. Alimony & illicit sexual behavior
    • By Dependent Spouse: Alimony Barred
    • By Supporting Spouse: Shall order alimony
    • By Both: Ct considers all circumstances & up to their discretion.

    If the behavior is condoned it will not be considered by the court
  63. Equitable Distribution
    4 steps
    • Identification
    • Valuation
    • Classification
    • Distribution
  64. 3 systems of Dividing Property
    • - Separate Title System
    • - Community Property
    • - Equitable Distribution
  65. Dividing Property - Separate Title System
    • No longer used by ANY STATE
    • Spouse retained assets acquired during marriage in individual name
    • Other spouse only gained interest upon death through estate rights
    • No recognition of homemaker contributions
  66. Dividing Property - Community Property
    • Minority Rule
    • Spouse acquires an undivided 50% interest in 'marital property' regardless of title unless
    • - gift to one partner
    • - inheritance to one partner
    • **note that increase in value to the above separate property is considered 'marital property'
  67. Equitable Distribution
    - What property is considered Marital property?
    - Majority Approach

    - All property acquired during marriage is "presumed" to be marital, including earnings, but can present evidence to show separate.
  68. Equitable Distribution in NC
    - marital property
    - Marital: Everything, name on asset doesn't matter, acquired by either spouse during marriage and before date of separation, vested & non-vested retirement, deferred comp., etc.
  69. Equitable Distribution
    - Separate Property
    • - Pre-marital property
    • - inherited
    • - acquired by gift (but not by other spouse)
    • - Property acquired in exchange for traceable separate property
    • - Personal injury payment for Pain & Suffering

    **the increase in value & income derived from separate property is also separate property**
  70. Equitable Distribution
    - Divisible Property
    • - All rights to receive property acquired before separation including:
    •   - bonuses
    •   - commissions  
    •   - Stock Options
    •   - tax refunds

    •   - interest/dividends
    •   - rental income
    •   - increases & decreases in marital debt, finance charges & interest
  71. Transmutation
    - what is it
    Separate property treated to give evidence of intention that it become marital property.

    NC does not recognize transmutation.
  72. When does the marriage end for the purposes of division of property?
    - Date of Separation

    - Date of trial for purposes of Divisible Property
  73. Dividing Debt
    - Debt in Equitable Distribution
    -
    - ED: Marital debt if incurred for the joint benefit of the parties.

    - CP: each party is liable for individual debt.  Community liable for community debt.

    **division of debt is not binding on creditors, they will go after the names on the debt**
  74. Equitable Distribution
    - Absolute Divorce
    - Death
    - ED claim survives divorce as long as action is filed before absolute divorce is granted.

    - ED claim survives death as long as parties are separate and apart at time of death (claim must be within 1 year of death)

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