Family court judges are charged with the responsibility of categorizing assets and debts, determining their value, and distributing them in a fair, equitable manner.
That’s how Equitable Distribution works in North Carolina.
And while that may seem rather straightforward or even obvious, such matters can be deceptively complex.
Married couples going through a divorce regularly dispute the value of houses, retirement accounts, and other assets as of the date of separation.
The other side of the coin involves the apportionment of debt, which may include things bank loans, mortgages, and even student loans.
And like real estate and other things of value that may be subject to repayment of a debt, assuming such debt was encumbered during the period of marriage, the Court must consider the “joint benefit” of the degree to the parties.
What is an education worth?
There are some general rules regarding Marital Debt in North Carolina and who bears the Burden of Proof to prove what is marital debt vs. separate (individual) debt.
The NC Divorce Laws, both under the Equitable Distribution statute and appellate court case law require:
- The party alleging debt is “marital” bears the Burden of Proof
- That includes proving the amount of the debt and debt value as of the date of legal separation
- AND that any such debt was undertaken for the joint benefit of the respective parties
There is also a balancing process of sorts.
If the Family Court Judge is to classify debts associated with student loans, there must be evidence the marriage lasted long enough for the parties to the marriage to “substantially enjoy” the benefit of obtaining the degree, which normally would be associated with improved earning capacity.
That may seem a bit nebulous if not downright confusing. Calculations regarding the value of an asset or debt may be relatively straightforward, based on hard numbers on bank statements and student loan records.
Figuring out how that could serve as a future benefit to either or both parties, while subject to the rules of production of evidence, is a bit more discretionary. That’s not unusual. In family court and legal issues involving Equitable Distribution, there are many, many issues left to the sound discretion of the court.
Are gifts Marital Property?
As long as the Court (the District Court Judges) does not abuse her or his discretion in making legal rulings, they will not be overruled. The Appellate Courts will not overturn ED rulings unless the Judge abuses their discretion or otherwise rules inconsistent with their Findings of Fact.
The Judge’s ruling on ED (Equitable Distribution) is followed, unless there is an obvious, clear abuse of discretion – Bill Powers, Charlotte Divorce Lawyer
Reversing the Court’s ruling is an incredibly difficult thing to do. The appellate court would have to find the entry of judgment (the legal ruling) is not supported by reason. It would also have to be shown that the Judge’s decision was not the natural consequence of or the result of a “competent inquiry.”
Otherwise, it would have to be shown that the Judge did not comply with the NC Family Law statutes, thus resulting in an abuse of discretion.
What is considered as part of Equitable Distribution?
There is a three-step process mandated under the Family Law statutes. The Judge is required to:
That applies to both assets and debts of the parties. Classification involves determining who owns what. That means answering the question, “What is a marital asset (or debt) and what is separate property (property owned by the individual people involved)?”
There actually is another type of property to consider, which is referred to as divisible property.
Debt associated with the marriage, which is also known as “marital debt” involves debts that are incurred during the period of the marriage and prior to the date of separation. Such taking on of debt must have been for the “joint benefit” of the spouses.
The moving party (the party trying to prove the debt is “marital”) has the legal duty to prove first the value of the debt at the date of separation and that the debt was incurred for the benefit of both parties, jointly.
Are school loans “Marital Debt?”
Additional education and degrees are not technically property that can be divided. At the same time, loans incurred for education during the period of marriage may be considered marital debt. The court must also consider whether both parties to the marriage are expected to share in the rewards of a degree or education.
Student loans may be deemed marital, even if the funds are not specifically used for education alone. As such, traditional education expenses regarding tuition, books, lab fees, etc., may be deemed marital debt.
Furthermore, student loans used to pay bills, buy groceries, and even pay for the costs of childcare may also be deemed a marital debt. That’s true also for expenses associated with travel and maintenance of the household to the benefit of the marriage overall.
The moving party (the spouse seeking to have debts classified as “marital”) must present evidence regarding the marriage and whether it lasted long enough both parties to “enjoy the benefits of the degree or higher earnings.”
Does it matter whether money is kept is separate accounts?
Maintaining separate bank or savings accounts while married is not necessarily determinative of the debt/asset classification. It is relevant for the court to consider.
Whether the debt or asset is kept in the name of both or even just one of the spouses is not the sole, determinative factor. The Court, in its Findings of Fact and Conclusions of Law, is required to consider in the totality of circumstances the evidence presented.
It frankly can be a complicated process. Figuring out how long means “long enough” to “enjoy the benefits” of education is not necessarily formulaic or an exact science.
If you have questions about this or how the Equitable Distribution laws in North Carolina work, please call NOW: 877-462-3841
Will Jeff Bezos still be the “worlds richest man” after getting divorced? Maybe. A lot depends on whether Bezos and his wife executed a contract that is often referred to as a Prenup or Pre-Nuptial agreement.
Of course, Jeff Bezos may not have been the world’s richest man in the first place. It’s likely he was a part of the world’s richest couple.
All the money earned at Amazon probably isn’t “his.” Instead, it’s reasonable to assume the billions from Amazon is theirs.
That’s because wealth accumulated during the period of marriage is often considered part of the marital estate, at least that would be the case under the NC divorce laws.
Without some form of agreement to the contrary, Bezos likely only ever owned 1/2 of the reported 137+ billion dollars – Bill Powers, Divorce Lawyer Charlotte NC
Indeed, some might say the term “world’s richest man” engenders a hint of sexism. President Trump purportedly said of Bezos, “I wish him luck, it’s going to be a beauty.”
It assumes wealth earned by the man is his and anything “given” to the wife, as part of a divorce or Equitable Distribution, was his to lose.
If marriage is truly a union where “two become one,” it’s a good idea to consider the fact that if you own a 1/2 interest in an asset, you are only ever entitled to 1/2 the value of that asset, if that.
Marital estates with substantial value (real property, bank accounts, and income), where those assets were obtained during the period of marriage and not treated as separate or individual property, are often divvied up straight down the middle.
Yet, under the NC divorce laws, you’d remiss in assuming “equitable” means “equal” in every instance.
In fact, an equitable distribution may very well result in one party to the marriage getting a larger percentage of the marital assets after careful consideration of a series of different factors.
What is Equitable Distribution in NC?
The etymology of the word “equity” comes from the Latin term aequitatem, which means “equal, impartial, and fair.” Under the laws setting forth the manner of determining equitable distribution in NC, equity does not necessarily mean 1/2.
In fact, what a Family Court Judge determines to be equitable could be anything but uniformity, equality, or symmetry. The Court must consider big picture things such as:
- Amount of money at hand
- Bank Accounts
- Checking / Savings
- Liquid Assets
- Prior marital estates
- Settlements and support requirements
- Relative infirmity of one spouse
- Housing needs
- Deferred income
- Income Due
- Profit Plans / Vested Interests
- Retirement Accounts
The specifics of Equitable Distribution are set forth in the NC General Statutes in N.C.G.S 50-20. The process includes three general steps or CVD: Classification, Valuation, and Distribution.
What is Marital Property?
If an asset is classified as “separate” or an individual asset belonging only to one spouse in the marriage, its value often isn’t quite as contentious. That’s because assets determined to be separate property are not Marital Property and therefore not subject to equitable distribution.
While Courts must consider individual separate property in determining things like Alimony in North Carolina, if found to be the possession of one party and not the marital estate, ED simply does not apply – Bill Powers, Divorce Attorney Charlotte NC
The process of figuring out what is marital property vs a separate or individual asset falls within the duty of the Court to classify property. Part of that may also include an assessment of what is divisible property.
Divisible property is a way to work through fluctuations in the value of marital property, both good and bad. Divisible property involves increases (and decreases) in the value of the marital property that occur after the date of formal separation but prior to the formal distribution of assets.
“Property” may or may not specifically relate to real estate. Divisible property may involve increases and decreases in value to houses and real estate, retirement accounts, and even things like precious metals or jewelry.
Once the asset is “classified,” the next step is to determine the value of that asset. Thereafter, the Court Orders the distribution of the asset. That may involve writing a check or transferring title to cars and houses or handing over personal items.
It sounds simple enough, that is until you disagree whether you intended something of value to remain yours, and yours alone, and not part of the marital estate. And as you might understand, the value of things commonly is a source of disagreement.
Powers Law Firm PA – Divorce Lawyers Charlotte NC
If you have questions about how the divorce laws may affect you or whether Equitable Distribution in NC includes gifts from family or an inheritance, give us a ring. We’re here to help.
You may reach Bill Powers by email: Bill@CarolinaAttorneys.com
**Unlike criminal defense matters and/or those involving DVPO Domestic Violence Protective Orders, consultation fees may apply. Our law firm charges hourly rates for divorce and family law legal representation.Learn More
Researching divorce and divorce lawyers is often an emotional but important first step. Considering your legal options is a good idea, especially if you’re not entirely certain you even if want to try separation or possibly end the marriage.
There are a lot of things to consider in addition to the relationship itself. Distribution of your marital estate can be extraordinarily complicated.
You might not realize the entire value of individual and marital assets until looking at things holistically, considering the totality of circumstances.
If you add children and the potential for protracted litigation or a custody dispute, there is a lot to absorb.
It’s OK to be a bit unsure and unsettled. This is a big step. It’s also OK to sit down with us, ask questions, and decide to do nothing at all – Bill Powers, Divorce Attorney Charlotte NC
What’s the first step in separation and divorce?
That’s a great question and a potential source for problems. Under the NC divorce laws, except for very narrow, limited exceptions, you must be legally separated for no less than 1 year before filing for divorce in North Carolina.
As such, legal separation comes first. Indeed, that’s what attorneys refer to as a term of art. The rules for legal separation are specific and not subject to negotiation.
One of the more common errors and misunderstandings people have is failing to fully comprehend what it means to be legally separated. It most certainly is not living in separate rooms, under the same roof, or simply proceeding as if you are no longer married.
That may be the law in other states. It is not the law in North Carolina. In fact, the one-year clock can be reset by renewed cohabitation, even if that turns out to be only for a short period of time.
What is a Legal Separation in NC?
Legal separation begins the day spouses maintain two separate residences, with the intent to continue living separate and apart from each other on a permanent basis. It must be an actual, physical separation with two separate, distinct residences. See N.C.G.S. § 50-6.
Article One of Chapter 50 (the NC Divorce and Alimony statute) mentions “husband” and “wife” when referring to legal separation. Given the adoption and recognition of same-sex marriages in North Carolina, the parties to a divorce, whatever form that may take, must intend to permanently live apart.
Thereafter, either the plaintiff or the defendant in an action for divorce in NC must have resided in North Carolina for no less than 6 months. There are also other legal requirements regarding jurisdiction and proper venue that must be fulfilled prior to filing a lawsuit.
Both parties do not have to consent to the divorce. That only takes one spouse in North Carolina. The law demands proof of legal separation for no less than one year and cannot be waived by mutual consent of the respective parties.
What is Reconciliation?
Resumption of marital relations after separation may later be determined to be a formal reconciliation. Under the law, that legal issue must be resolved pursuant to N.C.G.S. 52-10.2. Resumption of the marital relationship requires a voluntary renewal of a “husband and wife relationship.”
Occasional or “isolated” incidents of sexual intercourse may not constitute a legal reconciliation or otherwise cause problems with the mandatory 1 year separation period. In reviewing whether the parties intend to reconcile, the family court Judge considers the totality of the circumstances, making appropriate Findings of Fact and Conclusions of Law.
Obviously, the General Assembly will need to update the law, recognizing the legal rights (and responsibilities) afforded to same sex marriages in North Carolina.
Bill Powers – Divorce Attorney Charlotte NC
There is a fair amount of discretion and subjective interpretation given to Judges under the divorce laws. While that may lead to some level of confusion at times, it also recognizes the many different types of relationships in North Carolina.
Clearly, the Pine State has room to improve, especially as it pertains to updating and recognizing same sex marital relationships in the various and sundry laws and martial statutes.
Fortunately, the substantial discretion that is given to Judges in settling legal issues also provides the opportunity for compassion and empathy in resolving your legal dispute, recognizing individual circumstances and societal changes.
Our family court judges in Mecklenburg County are some of the best in the state. They are dedicated, hard-working, and committed to resolving marital disputes in a fair and equitable manner – Bill Powers, Divorce Attorney
And with that said, it’s important you take the time to carefully consider your legal options. The “first step,” as we’ve called it, may involve sitting down with an attorney, asking questions, and providing information about your unique circumstances.
No two marriages are exactly alike. What’s important to you and your family, especially concerning life-altering changes to the structure of your interpersonal relationships, deserves careful, measured consideration.
Failure to pay child support in North Carolina may result in a Show Cause Order and Civil Contempt proceedings.
Once entered, the Burden of Proof shifts, requiring the defendant/respondent to show why he or she should not be held in civil contempt of court.
Family law attorneys may refer to that person as the “contemnor.”
That traditionally has been a substantial burden, involving evidence of the ability to pay, and possibly more importantly, the inability to pay child support – Bill Powers, Charlotte Divorce Lawyer
Under the NC divorce laws, there cannot be a default judgment of sorts. The respondent contemnor may not be held in civil contempt by default.
Evidence must be introduced indicating the actual, present ability to pay child support. Indeed, the failure of the respondent to appear at the hearing is not deemed a “waiver.”
And as such, the family court judge is not relieved of the duty to make appropriate findings of fact that specifically address a present ability to pay.
Present ability to pay Child Support
A legal ruling by a District Court Judge in NC cannot be conclusory in nature without proper evidence before it. Conclusions of law, supported by sufficient findings of fact, must involve taking an inventory of sorts.
The Court must consider the responding party’s present financial condition.
Any such analysis of financial condition necessarily requires the present ability to pay. Changes in financial condition are therefore relevant and may indeed prove dispositive.
That can be frustrating, especially in circumstances where a substantial defense may be mounted by simply refusing to attend the hearing.
One would have to assume this will add to the complexity of family law litigation. It will be interesting to see how the trial courts interpret the gentle reminders of the Court of Appeal on child support and contempt issues – Bill Powers
What is a purge condition?
Anyone familiar with family court proceedings is familiar with compliance with a child support order and payment of the outstanding balance immediately prior to the hearing relating to the show cause contempt proceeding.
A civil order may be “purged” by coming into immediate compliance with the Court’s Order. In family court, upon a finding of willful contempt of court, the Judge normally sets “purge conditions,” providing the opportunity to purge the contempt.
Relative to contempt of court for child support, the judge is required to fully consider both sides of the present financial condition. A proper financial inventory demands balancing assets available to pay child support, income or lack thereof, and the reasonable needs of the responding parent.
That includes subsistence needs such as housing, food, use of a vehicle, and day-to-day living expenses. (FWSC – Food, Water, Shelter, Clothing)
The court must therefore also take into consideration income, the ability to work, and the willfulness of the lack of employment.
The family court judge must consider and balance both sides of the financial equation. The defendant’s living expenses are therefore an important part of any ruling on contempt of court for nonpayment of child support.
A responding parent’s reasonable and legitimate expenses are key considerations. The present ability to pay, to meet the purge condition (or purge conditions), requires balancing the remaining funds available after meeting the reasonable personal needs and expenses of the responding parent.
Ability to Work and Willful Unemployment
An absence of evidence is not necessarily the evidence of absence. The Court cannot draw a negative inference from the lack of evidence relative to the ability to pay.
The Court must have proper evidence before it. Lack of evidence will cause problems – Bill Powers, Family Law Attorney
Conclusions of law, predicated on improper findings, will be reversed by our appellate courts. The ability to work refers to the present ability to maintain a wage-paying job.
That does not necessarily mean one’s chosen profession or preferred method of employment. The court is the sole judge of the credibility of witnesses. Lack of credibility, standing alone, is likely not enough.
Charlotte divorce attorney – Bill PowersLearn More
The North Carolina Court of Appeals ruled this week on a longstanding Charlotte child custody and contempt of court legal issue, described as, “an exceptionally contentious and prolonged custody battle” between a father and mother in Mecklenburg County Family Court. Litigation began in January 2007 involving the custody of two children, one of whom has since “aged out” and has been the subject of various Show Cause Orders, Motions to Show Cause, Charlotte child custody and Contempt of Court proceedings since he was 11 years old.
Another daughter, who is now 17, is the subject of the present appeal in the Charlotte Family Court matter entitled Grissom v. Cohen. To download a copy of the NC Court of Appeals opinion as published on October 2, 2018, see: Charlotte Contempt of Court Child Custody 2018
The extent and nature of the litigation in the matter is remarkable, involving four different Charlotte Family Court Judges, 600+ findings of fact in 2 Custody Orders and at least two full child custody trials in Mecklenburg County. While truly extraordinary in scope and duration, it does serve as an example of the lengths to which parents will fight for child custody and visitation in Charlotte – Bill Powers, Divorce Lawyer Charlotte NC
Contempt of Court and Charlotte Child Custody Issues
In the latest round of litigation and appeals from a ruling by the Honorable Matthew Osman in Charlotte Family Court, the Plaintiff in the appeal (the mother Ms. Grissom) complained that the trial judge made a mistake by, “Failing to hold Father in civil contempt” and in effect, ending or eliminating the mother’s primary custody of a child.
Specifically, the attorney for the mother, a divorce lawyer Charlotte NC, alleged the district court judge:
- Applied the wrong Burden of Proof, confusing the differences and standards of proof, and who had the burden of proof, between
- Civil Contempt of Court – Greater Weight of the Evidence
- Criminal Contempt in Charlotte NC – Beyond a Reasonable Doubt
- Failed to acknowledge or enforce an alleged “Forced Visitation Order”
- Refused to find the father in Contempt of Court
The Court of Appeals disagreed on several legal issues, specifically writing the Plaintiff, “Makes the bold and legally impossible request that this Court make the factual determination” that the Defendant in the case (the father Mr. Cohen) violated the Modified Custody Order, that the father “willfully violated” the Custody Order, demanding the NC COA reset the case for trial for civil contempt.
One would be remiss in failing to note who wrote the Grissom v. Cohen opinion for the Court of Appeals, the Hon. Donna Stroud.
To say her Honor is dedicated to precision, especially in drafting Orders in civil court involving family law cases, and the associated legal standards applied at the appellate level to NC Family Law matters, is an understatement. The Grissom case, as it will likely come to be known among divorce lawyers in Charlotte and other family court jurisdictions, discusses a wide range of legal issues involving contempt of court, the burdens of proof for Show Cause Orders, the roles of family law judges, and the realities of child custody disputes.
Judge Stroud recently spoke to a Charlotte divorce lawyer seminar (continuing legal education CLE), sponsored by the Mecklenburg County Family Law section, titled, “Writing Good Orders – What Judges Want Family Law Lawyers To Know About Drafting Orders.” The Grissom v. Cohen ruling reminds family law attorneys there are important differences and distinctions between criminal contempt vs civil contempt.
Some of the more “big picture” legal issues in Grissom focus on:
- Family Court Judges in Charlotte and their duties- the “Trial Judge” has the responsibility to be the Finder of Fact. In divorce and family law disputes, the district court judge hears testimony at trials and during motions, listens to the evidence, weighs the evidence, resolving differences and conflicts in the evidence presented between the parties, and thereafter makes Findings of Fact and Conclusions of Law.
- The Appellate Courts in NC review, in family law cases, things like the appropriate Standard of Proof, Conclusions of Law, and whether the Conclusions, as a matter of law, are supported by the Findings of Fact. Generally, the Court of Appeals rules on whether legal issues or matters of contention, regarding the application of the NC Family Laws (including child custody, child support, contempt of court, etc.), were proper. Put simply, appellate courts review the application of the NC Family Laws and, when necessary, interpret the N.C.G.S. and other constitutional considerations. The Family Court Judge answers questions like, “Who gets the kids?” and “How much is child support in North Carolina?”
- The appellate courts also address technical differences between the Findings of Fact, Conclusions of Law, and the roles of the Courts. The Court of Appeals in family law cases does not review, on a de novo (“of new” or “for anew” in Latin) basis, contempt orders. They do not “re-try” the case or change legal rulings of a family law judge, even if they may have personally ruled another way. Appellate courts rule on the law, giving wide discretion to rulings by family court judges regarding factual issues, absent an abuse of discretion. Generally speaking, family court judges interpret evidence and decide factual disputes. Appellate judges look at the legal rulings, making certain the NC Family Laws are followed.
The legal standard of review in Charlotte family law cases involving contempt of court trials is whether there was competent evidence to support the Findings of Fact by the trial judge and further whether the Conclusions of Law by the Family Court judge were supported by the Findings of Fact – Bill Powers, Charlotte Divorce Lawyer
A key takeaway from the ruling is that unchallenged Findings of Fact are presumed accurate and otherwise supported by the competent evidence. That means they cannot be challenged on appeal, as they are described by family law attorneys as, “Binding on Appeal.” That is not to say the Appellate Courts of North Carolina cannot review rulings by Family Court Judges. Legal conclusions or what family law lawyers call, “Conclusions of Law” may be reviewed de novo by the NC Court of Appeals.
Call Bill Powers, Divorce Lawyer Charlotte NC NOW: 877-462-3841Learn More
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a uniform law drafted by the Uniform Law Commission in 1997. The UCCJEA encompasses a set of guidelines for courts to follow in their determination of child custody. To date, the law has been adopted by 49 states and Washington, DC. The UCCJEA breaks down legal and physical custody, sole and joint custody, grandparent visitation rights as well as factors to assess custodial rights.
Legal and Physical Custody
The law has divided custodial rights into two categories (legal and physical custody). Legal custody is the right and obligation to make decisions about the child’s well-being and upbringing. These include decisions regarding the child’s schooling, medical care and religious activities. Many states normally permit both parents to share legal custody of the child depending on the circumstances of the custody case. Physical custody is the right of a parent to have a child reside with him or her. There are two forms of physical and legal custody: sole or joint custody.
Joint or Sole Custody
There is a common misconception in child custody proceedings surrounding the definition of joint and sole custody. Many misconstrue these terms as a reference to physical custody alone. However, when a parent shares a form of custody, they are deemed to have joint custody for that specific form of custody. When one parent has a form of custody, they have sole custody for that form of custody. It is common for both parents to have joint legal custody while one parent has sole physical custody with visitation rights. Another arrangement permits one parent to have custody over the child during the school year while the other parent has custody over summer and spring breaks as well as certain weekends. This is another form of joint physical custody.
“Best Interests” Factors
With North Carolina’s adoption of the UCCJEA, the state is mandated to adhere to certain standards when determining child custody. A court determining child custody in North Carolina must consider a litany of circumstances surround the child and the many dynamics involved in the family’s life. Here are few of the factors a court will take into consideration:
- each parent’s wishes regarding custody
- the child’s age, sex, physical and mental health
- the child’s adjustment to home, school and community
- the child’s involvement in a religious faith
- each parent’s history of domestic violence (if any)
- each parent’s work schedule and child-care arrangements, and
- the child’s preference, if the child has reached age of discretion.
The overarching theme when determining custody is the “best interests” of the child. This best interests concept seeks to ensure and maintain the overall well-being of the child to foster their growth and development.
Charlotte Child Custody Attorneys
It is imperative that you hire an experienced family law attorney if you seek to fight for the custody of your child. The importance of this endeavor is too high to not involve a knowledgeable attorney. The experienced lawyers at Powers Landreth PLLC will advise and provide you with aggressive representation on all your child custody matters. Contact us now for a consultation.
The applicability of federal law in a country where each state is its own sovereign can cause some complexity for issues such as same-sex marriage. Marriage is under the ambit of state law, however, where the federal law interprets state law as a violation of constitutional rights, states must yield to the federal interpretation of the law. Same-sex couples seeking to marry have to gain a clear understanding of the marriage laws governing their jurisdiction. North Carolina is an example of a state where some complexity exists.
Same-Sex Marriage Under Federal Law
To fully understand state law, individuals must understand its relationship to the federal law. On June 26, 2015, same-sex marriage was pronounced as legal nationwide in the landmark case of Obergefell v. Hodges. In that case, the Supreme Court of the United States held that same-sex marriage was a guarantee under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment of the Constitution. With this ruling, same-sex marriages were recognized in all 50 states and Washington D.C. As of today, about seven counties in Texas and Alabama do not issue marriage licenses to same-sex couples.
North Carolina’s Same-Sex Marriage Laws
In North Carolina, same-sex marriage has been recognized since 2014 after the ruling in General Synod v. Cooper. In that case, the U.S. District Court held that a denial of marriage rights to same-sex couples in North Carolina was unconstitutional. Therefore, North Carolina permitted same-sex marriage before the Supreme Court handed down the federal ruling in Obergefell v. Hodges. Prior to the Cooper ruling, North Carolina had a statutory ban on same-sex marriage that passed in 1996. In 2012, the North Carolina legislature amended the state Constitution with marriage defined as a union between man and woman. After the ruling in Cooper and Obergefell, the 2012 statutory pronouncement is no longer applicable in North Carolina. It is important to note that North Carolina recognized (and still recognizes) domestic partnerships between same-sex couples.
Recent State Bill Introduced Against Same-Sex Marriages
On April 11, 2017, the North Carolina House of Representatives introduced a bill entitled the “Uphold Historical Marriage Act” also known as House Bill 780. The bill sought to recognize marriage as only between a man and woman as pronounced in the 2012 amendment to the state constitution. The bill directly undercuts the ruling in Obergefell, which gives credence to opponents who call the bill “null and void.” The bill has not passed the North Carolina state legislature as of March 2018. Presently, same-sex marriage remains lawful in North Carolina.
Charlotte Same-Sex Marriage Attorneys
Although same-sex marriage laws are permitted in the U.S., some couples still face challenges when it comes to divorce and child custody. Similarly, there is some complexity when same-sex couples that have been cohabitating for years without marrying seek to have their relationship recognized under the law. The experienced lawyers at Powers Landreth PLLC will advise you on your same-sex marital matters to prepare you for the road ahead. Contact us now for a consultation.
Spousal privilege is the legal and policy doctrine that accords confidentiality between spouses with an aim to encourage martial harmony and to protect families. There are two types of spousal privilege: (1) testimonial privilege and (2) communications privilege. Each privilege applies in finite circumstances and requires an inquiry into the status of the marriage.
Testimonial privilege is asserted in criminal cases. In this scenario, one spouse is called to testify against another spouse in a criminal proceeding. The spouse who is being called to the stand can assert testimonial privilege and refuse to testify against the defendant spouse. At the same time, this privilege is not absolute. The witness spouse may choose to waive his or her privilege and testify anyway. This can occur even under the objection of the defendant spouse. In different jurisdictions, there are exceptions to testimonial privilege including in the case of marital rape. For the testimonial privilege to apply, the defendant spouse and the witness spouse must be married at the time the privilege is asserted.
Spousal communication privilege is asserted in both criminal and civil cases. This privilege covers words uttered and actions taken during the marriage. The totality of the circumstances must convey that the communication was intended as private. Therefore, one spouse can assert the communications privilege when asked to testify to private, confidential communications occurring during the marriage. Unlike testimonial privilege, communications privilege survives the end of the marriage. As such, a spouse can assert the communications privilege as long as the communication occurred during marriage even though the marriage has now ended in divorce or death. In the case of spousal communications, both spouses are permitted to refuse to make a disclosure. The burden is on the opposing party to prove that the words or acts were not intended as private.
Spousal Privilege in North Carolina
The spousal testimonial and communications privileges are known as common law constructions. In North Carolina, these privileges are statutory. The statutory formation may include multiple exceptions to the rules conveying that the state is more interested in other matters that may trump keeping harmony in the marital relationship. Spousal communication privilege in North Carolina is quite similar to the common law construction:
No husband or wife shall be compellable to disclose any confidential communication made by one to the other during their marriage.
However, North Carolina provides the following exception in its version of testimonial privilege:
- Criminal cohabitation or bigamy
- Assault or threats
- Trespass upon the residence of other spouse when living separately
- Abandonment or failure to provide support
- In the prosecution of one spouse for any criminal offense against the minor child of the couple or one spouse
Charlotte Divorce Attorneys
The spousal testimonial and communications privileges can appear as obscure evidentiary rules. However, in practice the assertion or lack thereof can have severe repercussions in divorce proceedings and related criminal mattress. The lawyers at Powers Landreth PLLC can advise you on spousal privilege matters and prepare you accordingly. Contact us now for a consultation.
At first blush, the North Carolina law requiring a one-year separation period before a court can grant divorce has some saving qualities. One might view the law as creating the space and time for couples to reconsider divorce, which is especially important when children are involved. However, for certain individuals, the one-year waiting period is quite a burden.
One-Year Waiting Period May be Incompatible for Certain Marriages
A 33-year-old woman living in North Carolina separated from her husband and was able to provide solid evidence to a court to warrant a restraining order. Included in her evidence were photos of injuries she claims she sustained from the abuse of her husband. Even with a documented history of abuse and a restraining order, the woman must wait one year before seeking a divorce. During the interim, she had to pay her husband’s health insurance. She also had to endure the psychological distress of knowing that the person who allegedly abused her was legally recognized as her husband. Possible abuse victims like this woman fear for their safety when the state requires prolonging a legal relationship, which brings them pain and suffering. The issue with the one-year waiting period is not limited to psychological pain. Like the woman’s payment of her estranged spouse’s health insurance, sustained legal recognition of the marriage carries certain obligations and requirements abuse victims should not have to maintain. In one respect, the obligation may prove unethical and dangerous.
Domestic Abuse Victim Seeks to Amend G.S. 50-6
The woman’s ordeal prompted her to create a petition requesting North Carolina Attorney General and the state General Assembly to amend G.S. 50-6. The petition seeks an amendment of the one-year waiting period for established abuse victims. The woman’s campaign garnered national attention after her story was featured on Now This, a national news outlet. The campaign sought to highlight the counterintuitive nature of the law. For example, it is rather unethical to require a spouse to remain married to an individual who has been convicted of stabbing him or her. Proponents of amending G.S. 50-6 find no defensible argument requiring an abuse victim to continue a marriage that is dangerous to his or her well-being. North Carolina is not the only state with a waiting period requirement. Other states (Illinois, Maryland and Pennsylvania) actually have a two-year waiting period if the divorce is not mutually consensual.
How Divorcing Abuse Victims Can Manage North Carolina’s One-Year Requirement
As an abuse victim seeking a divorce, the best thing you can do is get out of harm’s way. This includes obtaining a domestic violence protective order and ceasing cohabitation. Even though G.S. 50-6 is still the law in North Carolina, there are additional safeguards abuse victims can request to facilitate their safety and tamper the obligations of the legally recognized marriage. This includes requiring that law enforcement remove the defendant from a shared home, ordering the defendant to stay away from the plaintiff’s home, school or place of work, ordering the defendant to pay his or her own insurance, and ordering the defendant to forfeit any firearms or other weapons. Abuse victims must keep well-documented records of all encounters with their abusive spouse. In addition, hire an experienced family law attorney to aggressively fight for your interests during this critical juncture.
Charlotte Divorce and Domestic Abuse Attorneys
At Powers Landreth PLLC we will provide zealous representation to ensure that the law works on your behalf. Even though G.S. 50-6 is still the law in North Carolina, our experienced family law attorneys can advise you and craft legal strategies to facilitate your one-year transition. Contact us now for a consultation.
Annulment is the legal procedure that declares a marriage void from its inception. The marriage is deemed as illegal when it was pronounced, therefore, the effect of an annulment is retroactive invalidity. Annulment is granted on varying grounds depending on the state at issue including insanity, bigamy and incest.
Voidable vs. Void Marriages
Under North Carolina law, a marriage is that void is subject to annulment. In the alternative, a marriage that is voidable is a marriage that is entered into with a major defect including: (1) incest, (2) false pretenses, (3) impotence, (4) lack of sound mind, and (5) one of the spouses being under the age of sixteen. All of these instances are grounds that the court will consider as voidable. Unlike void marriages, a court can deem a voidable marriage as valid depending on the circumstances of the case. For example, in the case of false pretenses, if you remain married after you discover that your spouse was never pregnant (as was communicated before the marriage), then a court can find validity under the rationale that the pregnancy was not the actual reason for seeking the annulment.
One Annulment Ground in North Carolina
In North Carolina, the only ground for an annulment or void marriage is bigamy. Bigamy is the illegal act of marrying an individual who is already lawfully married to another individual. People who enter into bigamous marriages have entered into a void marriage per the law in all U.S. states. Bigamy, unlike the voidable grounds, is immediately void and the marriage is never valid under law.
How to Get an Annulment in North Carolina
Individuals seeking an annulment must file a claim for absolute annulment. The plaintiff spouse must file the claim in the county in which the defendant spouse resides. The more specific evidence and firsthand witness testimony the plaintiff shows, the more likely the annulment will be granted. With bigamy being the only ground for an annulment, plaintiffs are better served by providing solid evidence of the defendant’s marriage including marriage certificates, photos, or proof of children born of the first marriage.
Effect of a Void Marriage
In divorce proceedings, the individuals are considered as divorced after a divorce decree is issued. Under the law, the parties where married and the decree is the legal recognition of the dissolution of the marriage. After an annulment is granted, the marriage is deemed as to have never existed. You were and are currently single. However, children born to an annulled marriage are considered children of a valid marriage for the purposes of child support and parenting. Unlike divorce, property distribution and spousal support are not available in annulment proceedings.
Charlotte Annulment Attorneys
It is important to involve an experienced attorney to guide you through filing for an annulment or ending your voidable marriage. Annulment and voidable marriages are complex issues, but the Charlotte family law lawyers at Powers Landreth PLLC are ready to simplify the process and provide you with ardent representation. Timely filing of these claims will dictate your success. Contact us now for a consultation.