Candlelight Vigil for North Carolina’s Domestic Violence Victims
A crowd gathered in Graham, North Carolina, on to remember 77 victims who died as a result of domestic violence in the state in the past year, according to an article by The Times-News.
A joint effort organized by the Family Justice Center and Family Abuse Services, attendees assembled in front of the Alamance County War Memorial. With a crowd bearing candles to the light the night, the name of every one of the 77 domestic violence victims rang out into the darkness.
Part of the motivation for organizing this event centers on raising awareness of the growing domestic violence epidemic across Alamance County.
What is the Definition of Domestic Violence in North Carolina?
The legislature outlined the state-specific approach to domestic violence in Section 50B-1 of the North Carolina General Statutes. There are two major elements to the crime of domestic violence – personal relationships and types of conduct.
What is the Definition of Personal Relationship in North Carolina?
One element of the North Carolina definition of domestic violence concerns personal relationships. There are six different types of personal relationships outlined under Section 50B-1.
In order to qualify as a personal relationship, the people must be:
- Married or previously married;
- A male and female who currently live or previously lived together;
- In a parent-child or grandparent-grandchild relationship;
- Parents to the same child;
- Current or previous household members; or
- A male and female who are currently or were previously in a dating relationship.
What Conduct Qualifies as Domestic Violence in North Carolina?
The other element of the North Carolina definition of domestic violence concerns certain conduct. In cases where the perpetrator and victim have a personal relationship, it is domestic violence if the perpetrator:
- Inflicts harm or injury or attempts to inflict harm or injury;
- Threatens or harasses to the point of severe emotional distress; or
- Commits a sex crime, including rape.
Section 50B-1 does offer a specific exception concerning self-defense. If a person is in reasonable danger of injury or death, then they are allowed to defend themselves. In such circumstances of reasonable self-defense, it is not considered domestic violence.
Let Us Help You with Your Case
Whether you are facing domestic violence, divorce or other aspects of family law, it is important to have professional help. Don’t hesitate to reach out to Powers Landreth PLLC in Charlotte, North Carolina for assistance with your case.
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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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Suing Your Unfaithful Spouse’s Lover
North Carolina is one of only a small handful of states that allows for the filing of a lawsuit and cause of action against your unfaithful spouse’s lover. The North Carolina Court of Appeals recently upheld the ability in some cases to sue the person who had the affair with your spouse. This is called “alienation of affection,” or interference with a marriage, and “criminal conversation,” or adultery, as the basis.
The court of appeals noted, “They further the state’s desire to protect a married couple’s vow of fidelity and to prevent the personal injury and societal harms that result when that vow is broken.” They added, preventing “personal injuries and societal harms is a substantial government issue.”
The court rejected the argument that the laws are unconstitutional because they violate individual rights to intimate sexual activity and expression with other consenting adults.
So, what are alienation of affection and criminal conversation, and how do they come into play in North Carolina family law matters?
Alienation of Affection
When you bring a cause of action for alienation of affection, you’re suing a third party you believe to be responsible for the demise of your marriage. In most cases, this is a spouse’s lover, but that’s not always the case. In some matters, someone like a therapist or clergy member have advised someone to seek divorce, which falls under alienation of affection.
Alienation of affection cases require proof of elements like:
- There was a marriage with love and affection between spouses to some degree;
- The love and affection were indeed alienated and destroyed; and
- The malicious acts of the defendant contributed to or were responsible for that loss of love and affection.
The standard of proof in these causes of action typically revolves around showing the defendant intentionally engaged in acts that would impact the marriage, not necessarily that they intentionally set out to destroy someone’s marriage.
Criminal Conversation
Criminal conversation is a cause of action that typically accompanies alienation of affection lawsuits, and is a tort that arises from the act of adultery itself. The term conversation is an antiquated reference to sexual intercourse, which is pretty much obsolete except as used in this legal setting. In order for criminal conversation to apply, there must be an actual marriage between plaintiff and the spouse, and there must be sexual intercourse between the defendant and plaintiff’s spouse during that marriage.
Amendments to the Law
Not surprisingly, lawsuits for alienation of affection are hotly debated, which has led to some modifications to the law in recent years. Additional terms under § 52-13 Procedures in causes of action for alienation of affection and criminal conversation include:
- There is no cause of action if the alienation of affection and criminal conversation occur after the plaintiff and plaintiff’s spouse physically split
- An action shall not be commenced more than three years from the last act of the defendant giving rise to the lawsuit
- You can only sue a natural
Understanding Your Legal Rights
Alienation of affection and criminal conversation cases are not always applicable in every situation, but it’s important you understand your legal rights and available options. If you think your spouse may be cheating, contact the experienced family law attorneys at Powers Landreth PLLC today for a consultation.
Resources:
charlotteobserver.com/news/local/article171544957.html
ncleg.net/EnactedLegislation/Statutes/PDF/BySection/Chapter_52/GS_52-13.pdf
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How Does North Carolina Deal with Prenuptial Agreements?
Commonly referred to as prenuptial agreements, premarital agreements are made between potential spouses before marriage. These agreements outline certain rights and responsibilities for each spouse, such as the division of property upon death or divorce.
In Chapter 52B of the North Carolina General Statutes, we find the Uniform Premarital Agreement Act. This act outlines the framework for premarital agreements in North Carolina.
Under Sections 52B-3 and 52B-4, we find the requirements for premarital agreements in North Carolina. First and foremost, premarital agreements must be written and signed by both spouses. Without a writing signed by both spouses, premarital agreements are not valid. Additionally, even if one spouse does not receive any benefit under the agreement, it is still valid and enforceable.
Similar requirements exist for amendments to or revocation of a premarital agreement. Both spouses must execute and sign a writing outlining the changes or elimination of the agreement. Even in the absence of consideration, where one spouse does not receive any benefit, the amended or revoked agreement can be valid and enforceable.
North Carolina outlines eight different areas under which prospective spouses can create a premarital agreement. Premarital agreements in North Carolina are allowed to govern:
- The rights and obligations regarding property owned by either or both spouses;
- The right to conduct real estate transactions (purchase, sale, transfer, mortgage, etc.) concerning property;
- The division of property upon certain marriage-ending events, such divorce or death;
- The right to change or remove obligations concerning spousal support;
- The establishment of estate planning mechanisms (wills, trusts, etc.) to carry out all or part of the agreement;
- The control and ownership of the death benefit from a life insurance policy;
- The right to choose which legal system governs the agreement; and
- The ability to create other conditions, so long as those conditions conform to the law and public policy.
There is an important exception. The parties to a premarital agreement are not allowed to prevent children from receiving child support. That is one area that is off limits for premarital agreements in North Carolina.
Do You Need Legal Counsel from an Experienced Family Law Attorney?
Whether you are dealing with a prenuptial agreement, divorce or other aspects of family law, there is a lot to consider. Personal needs are balanced against family wellbeing. With so much on the line, it can difficult to know where to start. That is where an experienced family law attorney can make a true difference, explaining your rights under the law and planning an appropriate strategy. That way you will be in the best position for a successful outcome.
Based in Charlotte, North Carolina, Powers Landreth PLLC has 20 years of combined legal experience in matters of family law. If you have questions about a prenuptial agreement, divorce or other aspects of family law, please feel free to contact us at your earliest convenience. We will work tirelessly to help you overcome any obstacles in your path. The attorneys at Powers Landreth PLLC are available 24/7 by phone at 704-342-4357, by fax at 980-209-0029 and online by completing a simple form.
Resource:
ncga.state.nc.us/gascripts/Statutes/StatutesTOC.pl?Chapter=0052B
Learn MoreIs an Annulment Right for You?
If you follow pop culture at all, you will recall that a little more than ten years ago now, actress Renée Zellweger and country singer Kenny Chesney were briefly married. The marriage lasted only a matter of months. However, a divorce was not the legal action that they took to end their marriage—it was an annulment. Annulments are not as common as divorces because they are only allowed in certain circumstances, but it is worthwhile to discuss what they are in case they apply to a situation relevant to you.
Annulment Defined
While a divorce ends a marriage of two people who no longer want the marriage, an annulment essentially treats the marriage as though it never existed. In North Carolina, two people can request that a court annul their marriage if they can show that it is an invalid marriage. The technical terms that the state and the courts use are “void” and “voidable.” If a marriage falls into either of those categories, then a court can annul it. Most of the situations below are voidable marriages, as opposed to void marriages. The only void one is essentially that of a bigamous situation. Such a marriage is invalid from the beginning, but it is still best to request an official annulment.
Examples of Annulment-Worthy Marriages
North Carolina lists a few different situations in which the courts will grant an annulment to a married couple.
Family Members
If the marriage is an incestual one, then that marriage qualifies for an annulment, per North Carolina law. Specifically, the two parties must be closer than first cousins.
Age
If one of the parties is under the age of sixteen and there was no prior court order allowing the marriage, then it may qualify for an annulment. However, the situation is trickier if a child is involved. If the girl or woman is pregnant or has already had a child with the other party, then the courts will not annul such a marriage. The only exception is if the child unfortunately died, either at birth or afterwards.
Capability
If one of the parties is physically impotent, then that is a ground for annulment. Along a similar vein, if one of the parties was mentally incapable of entering into the marriage and understanding what it entailed, then the courts may grant an annulment.
Deception
If a man marries a woman under the impression that she is pregnant with his child and it then turns out that she actually was not, then he may have grounds for an annulment.
Seek Help
This was simply a very brief overview of situations that can lead to an annulment, as opposed to a divorce. If you think that your situation may fall into one of the categories that we mentioned, then reach out to us. We will be able to help you fully analyze your circumstances and compare them to the different fact scenarios that have gone before the courts of North Carolina to determine the best steps forward. Call the experienced family law attorneys at Powers Landreth PLLC today.
Resource:
ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_51/GS_51-3.html
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