Can North Carolina Magistrates Refuse to Perform Same Sex Marriage?
After a federal appeals court ruling, a North Carolina law that enables magistrates to refrain from performing same sex marriages will continue in full force, according to an article by The Charlotte Observer.
Introduced as Senate Bill 2 by State Senator Phil Berger, the law in question allows magistrates and other officials to decline to perform a lawful marriage based on religious objections. Senate Bill 2 arrived in the North Carolina legislature in 2015, in response to a 2014 federal court decision.
That 2014 decision essentially legalized same sex marriage legal in North Carolina. Moreover, any magistrate who refused to perform a lawful wedding could be subject to discipline. Several months later, Berger introduced Senate Bill 2. Former Governor Pat McCrory vetoed the initial bill. But the legislature overcame that veto and passed Senate Bill 2 on June 11, 2015.
Approximately two weeks later, the United States Supreme Court decided Obergefell v. Hodges, rendering same sex marriage a fundamental, constitutional right across the United States. But Senate Bill 2 lives on in North Carolina, creating a potential conflict between state law and federal rights.
In an effort to combat Senate Bill 2, three different couples banded together to file a challenge in federal court. The couples argued that their taxes should not help facilitate this type of law. At the time of filing, approximately five percent of North Carolina magistrates were refusing to perform same sex marriages on religious grounds. Of particular note, every single magistrate in McDowell County was refraining from performing same sex marriages due to religious objections.
The United States Court of Appeals for the Fourth Circuit in Richmond, Virginia, heard the case. After considering the arguments and evidence, the Fourth Circuit determined that the couples lacked standing to bring a challenge. The court noted that none of the couples had their marriage licenses rejected. Without suffering harm – such as denial of marriage due to a magistrate’s religious objection – the couples are not allowed to challenge the law merely as taxpayers. As a result, the Fourth Circuit dismissed the case.
At this point, the couples will need to decide whether to appeal to the U.S. Supreme Court. Until then, Senate Bill 2 will continue on in full force as the law of the land in North Carolina.
Contact Us Today
If need legal help concerning same sex marriage, child custody or other facets of family law, you do not have to tackle every obstacle alone. You can turn to a proficient family law attorney at Powers Landreth PLLC in Charlotte, North Carolina to help you navigate toward an effective resolution. Reach out to us today for help.
Resources:
charlotteobserver.com/news/politics-government/article158591679.html
ncleg.net/Sessions/2015/Bills/Senate/PDF/S2v4.pdf
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What is the Meaning of Equitable Distribution in North Carolina?
Our topic for discussion today involves the North Carolina approach to equitable distribution. In simple terms, equitable distribution refers to process of the court dividing up marital property between the spouses during divorce proceedings. It is important to note that equitable distribution only occurs when the spouses cannot agree amongst themselves to a fair distribution of their property.
How Does North Carolina Define Equitable Distribution?
In Section 50-20 of the North Carolina General Statutes, we can find the state-specific definition for equitable distribution. Essentially, North Carolina allows either party to a divorce to ask the court to determine a fair division of spousal property. At that point, the court will examine both the marital property of the spouses. Then the court will determine a fair division of that property between the spouses. For reasons we will discuss below, the court will not divide the separate property of the spouses.
How Does North Carolina Define Marital Property?
Section 50-20 also provides the state-specific definition for marital property. Essentially, North Carolina defines marital property as all of the real and personal property acquired by either spouse during their marriage. It is generally understood that anything acquired after marriage and before separation or divorce shall be considered marital property.
Examples of marital property include pension, retirement and other deferred compensation, whether vested or unvested. The same applies to military compensation rights under the Uniformed Services Former Spouses’ Protection Act, whether vested or unvested.
How Does North Carolina Define Separate Property?
Section 50-20 also outlines an exception to the marital property rule concerning separate property. Essentially, separate property refers to real and personal property acquired before marriage. Separate property also refers to professional or business licenses that are not transferable.
Separate property can also include property acquired during marriage by either spouse directly, such as through a will or gift. But this exception requires specific language indicating that the property is intended for one spouse only and should not be considered marital property.
Whether you are dealing with equitable distribution, divorce or other aspects of family law, there are innumerable considerations to take into account. In such situations, it can be extremely helpful to consult with a knowledgeable family law attorney to ensure that you take an appropriate course of action. The legal professionals at Powers Landreth PLLC in North Carolina are eager to assist you today.
Resource:
ncga.state.nc.us/gascripts/statutes/statutelookup.pl?statute=50-20
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What is a Collaborative Divorce?
Today we will explore the North Carolina approach to collaborative divorce. Established in 2003 via amendment to the North Carolina General Statutes, this legal process leverages alternative dispute resolution to help spouses complete the divorce process as quickly and efficiently as possible.
How Does North Carolina Define Collaborative Divorce?
In Chapter 50, Article 4 of the North Carolina General Statutes, we can find the state-specific definition for collaborative divorce, which is referred to legally as collaborative law.
Under Article 4, collaborative law is a legal procedure that allows a husband and wife to resolve divorce and other marital disputes without involving the courts. Instead of going through lengthy court proceedings, the spouses work together to find a mutually acceptable solution to their problems.
Throughout this process, the spouses will have to account for the standard issues in any divorce. They will have to agree upon the proper division of their property, distributing ownership as they see fit. If the spouses have children together, they will work together to determine the custody arrangements. In certain cases, they will also agree upon the presence and amount of child support, alimony and other support payments.
What are the Requirements for Collaborative Divorce?
As outlined in Article 4, the husband and wife must agree in writing as to the parameters of their collaborative divorce. To be effective, the husband, wife and their lawyers must all sign the writing. The written agreement must outline all relevant understandings concerning the collaborative divorce, such as property division, child custody and support payments.
There is an additional detail to account for with collaborative divorce agreements. If the spouses are unable to reach an agreement through the collaborative divorce process, the attorneys must withdraw from the case. Those same attorneys are not allowed to represent the spouses in future divorce proceedings.
Are Collaborative Divorce Proceedings Confidential?
Article 4 provides that collaborative divorce proceedings are confidential and privileged. This means that all statements, communications and work product related to the collaborative divorce would be inadmissible in future divorce proceedings. This applies to statements, communications and work product from the spouses, attorneys and third-party experts.
Do You Have Questions for a Skilled Family Law Attorney?
Whether you are dealing with collaborative divorce or other aspects of family law, it is vital to tread carefully. Fortunately, an experienced family law attorney can analyze your situation and help you work toward a positive outcome. Located in Charlotte, North Carolina, Powers Landreth PLLC is prepared to assist you with your family law case. Don’t hesitate to reach out to us today for professional assistance.
Resource:
ncleg.net/EnactedLegislation/Statutes/HTML/ByArticle/Chapter_50/Article_4.html
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Advocates March Against Domestic Violence in Charlotte
Advocates against domestic violence organized a march in Charlotte on September 28th, according to an article by FOX 46 Charlotte.
Featuring domestic violence victims, members of the community and law enforcement officials in their ranks, the advocates marched along North Tryon Street. They displayed a number of signs with messages such as “verbal abuse is domestic abuse” and “men, step up and prevent dv.”
A domestic violence counselor for the Charlotte-Mecklenburg Police Department (CMPD) highlighted the importance of establishing a support network for victims. The counselor also underlined the CMPD dedication to domestic violence issues, with six detectives and four counselors available to victims. The counselor also highlighted the partnership between the CMPD and the Charlotte branch of the Domestic Violence Advocacy Council.
In light of this new development, we will review North Carolina laws concerning domestic violence in the following sections.
How Does North Carolina Define Domestic Violence?
In Section 50B-1 of the North Carolina General Statutes, we can find the state-specific definition of domestic violence.
The first requirement of domestic violence involves a personal relationship. We will discuss the parameters of personal relationships below. But for now, we must note that domestic violence can only apply if the parties have a personal relationship.
The second requirement of domestic violence in North Carolina involves the commission of certain crimes. It is domestic violence if the perpetrator:
- Causes or attempts to cause bodily injury;
- Inflicts substantial emotional distress by placing the aggrieved party in fear of imminent serious bodily injury or continued harassment; or
- Commits rape or other sex offenses.
There is an important exception to Section 50B-1 concerning self-defense. It is not illegal for individuals to defend themselves in a reasonable manner.
How Does North Carolina Define Personal Relationship?
Section 50B-1 also provides us with North Carolina’s definition of personal relationship. As domestic violence only applies in cases where there is a personal relationship, this is an important concept to grasp.
Section 50B-1 outlines a number of categories that qualify as a personal relationship. People who are currently or were previously married spouses. People of the opposite sex who lived together or have previously dated also qualify. People who are engaged in a parent-child relationship – including grandparents and guardians – qualify as well. And another example is current or former household members, even if no dating relationship exists.
Do You Have Questions for an Experienced Family Law Attorney?
Whether you are dealing with domestic violence, divorce or other aspects of family law, it is paramount to take a cautious approach. After all, the legal issues at play concern you and your family, making it difficult to balance personal interests against family needs. Thankfully an experienced family law attorney at the North Carolina office of Powers Landreth PLLC can help you plan the road to recovery with carefully implemented strategy. Don’t hesitate to reach out to us today for help.
Resources:
fox46charlotte.com/news/local-news/dozens-march-against-domestic-violence-in-charlotte
ncleg.net/gascripts/statutes/StatutesTOC.pl?Chapter=0050B
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Child Custody & Support in North Carolina
Today we will explore the North Carolina approach to child custody and child support. Before we delve into specifics, there is an overarching consideration we need to consider first. North Carolina places a high importance on the best interests of the child. In any determination of child custody or support, the court will examine what circumstances will yield the best outcome for the children involved.
What are the Different Types of Child Custody in North Carolina?
There are three major types of child custody in North Carolina.
First, we will discuss sole custody. In this situation, one parent has sole decision-making power on behalf of the child or children. The other parent does not have any rights concerning the child or children.
Second, we will discuss joint legal custody and joint custody. Joint legal custody means that both parents share decision-making power on behalf of the child or children. Though joint legal custody does not necessarily involve shared physical custody. Joint custody means the parents share equally in decision-making power and physical custody of the child or children.
Third, we will discuss primary custody. In this situation, the parents share decision-making power on behalf of the child or children. But the breakdown of physical custody is less even. One parent has physical custody during the week; the other parent has physical custody on the weekends.
Having covered the basics of child custody, we can move on and explore the North Carolina approach to child support.
How Does North Carolina Determine Child Support?
The North Carolina Court System provides a number of worksheets to help calculate child support. Interested parties are encouraged to review applicable worksheets to gain a better understanding of the factors involved.
In most cases in North Carolina, there are four primary factors involved in the calculation of child support:
- Gross monthly income of one parent;
- Gross monthly income of the other parent;
- Monthly health insurance allocation of children; and
- Childcare costs related to work.
It is important to note that if the parents make less than $300,000 combined annually, then child support will be determined by the North Carolina Child Support Guidelines.
Is Child Support Permanent in North Carolina?
No, child support is not permanent in North Carolina. The limit on child support is generally the child’s 18th birthday or high graduation. Though there are extremely rare circumstances in which child support may extend beyond the child’s 18th birthday or high graduation.
It is important to note that the amount of child support can also change over time. If there is a substantial change in circumstances for either parent, then the courts may increase or decrease child support contributions.
Do You Have Questions for a Skilled Family Law Attorney?
Whether you are dealing with child custody or support, divorce or other aspects of family law, it is prudent to be cautious. There is a need to balance your personal interests against the needs of your family. Even the smallest issue can lead to disastrous consequences. That is why it is crucial to consult with a skilled family law attorney to design a strategic and balanced approach. Otherwise, you may not put yourself in the best possible position for a successful outcome.
Based in Charlotte, North Carolina, Powers Landreth PLLC has 20 years of combined legal experience. If you have questions about child custody or support, divorce or other aspects of family law, please feel free to contact us at your earliest convenience.
Resource:
nccourts.org/Forms/Documents/1226.pdf
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Explaining Alimony in North Carolina
The concept of alimony arose to address inequality between spouses after divorce. This inequality is especially prevalent in marriages where one spouse served as the breadwinner and the other spouse served as the homemaker. When that marriage dissolves, there is a clear difference between the earning power of the spouses. Alimony provides a mechanism to address this type of post-divorce inequality.
In Section 50-16.3A of the North Carolina General Statutes, we find the state-specific approach to alimony. This section outlines a number of important considerations for alimony in North Carolina. Today we will cover the topics of entitlement to as well as the amount and duration of alimony.
Who is Entitled to Alimony in North Carolina?
During a divorce proceeding in North Carolina, either spouse may request alimony. If one spouse was dependent on the other spouse, then the court orders the supporting spouse to pay alimony to the dependent spouse. The amount and duration of alimony changes based on a number of factors, which we will discuss below.
The court has to consider additional factors beyond dependency – illicit sexual behavior. North Carolina defines illicit sexual behavior as infidelity or other deviant sexual acts.
- If the dependent spouse participated in illicit sexual behavior, then there is no alimony.
- If the supporting spouse participated in illicit sexual behavior, then the dependent spouse is entitled to alimony.
- If both the supporting and dependent spouses participated in illicit sexual behavior, then the court decides whether to award alimony.
- If one spouse condoned the illicit sexual behavior of the other spouse, then there is no alimony.
There is an important consideration concerning marital misconduct, which includes illicit sexual behavior. During the alimony process, either spouse may ask for a jury trial on the issue of marital misconduct. The jury will determine whether marital misconduct took place and who was responsible.
How is Alimony Calculated in North Carolina?
The court has discretion to decide the sum, timeframe and payment method of alimony. When making this determination, the court considers 16 factors, including but not limited to:
- Marital misconduct,
- Earned and unearned income,
- Current and future earning power,
- Age as well as physical, mental, and emotional state,
- Property owned before marriage,
- Homemaker contributions and
- Length of the marriage.
After deciding whether or not to award alimony, the court is required to justify its determination, including reasons for the sum, timeframe and payment method.
Do You Need Legal Counsel from an Experienced Family Law Attorney?
Whether you are dealing with alimony, divorce or other aspects of family law, it is crucial to tread carefully. Your personal interests may clash with the needs of your family. Without a carefully planned and balanced approach, there is potential for disaster. Fortunately an experienced family law attorney can help you examine all aspects of your case and design a suitable approach, maximizing your chance for a positive outcome.
With offices in Charlotte, North Carolina, Powers Landreth PLLC has 20 years of combined legal experience. If you have questions about alimony, divorce or other aspects of family law, please do not hesitate to contact us immediately.
Resource:
ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_50/GS_50-16.3A.html
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