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.
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 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.
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 877-462-3841, by fax at 980-209-0029 and online by completing a simple form.
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.
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.
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.
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.
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.
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.
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.
There are many reasons why a man might want a child. The joys of fatherhood are plentiful. Children and parents often make memories that last their entire lives. As such, there is no limit to the reasons why a father, or even a mother, might want to make sure that the law recognizes a father-son relationship.
In North Carolina, if a married woman has a child, the state presumes that her husband is the father of the child. However, this is not necessarily so with an unmarried woman. If a child is born out of wedlock, and the woman is unmarried, the child then only has legal connection to her. In that instance, either the father will want the state to recognize the child as his through legitimization, or perhaps, the mother will want the state to recognize the father’s status to the child through a paternity process.
In North Carolina, for children who are born out of wedlock, there is a process called legitimation, which can allow them to have the same rights and privileges as children born in wedlock. The legitimation process, as opposed to the paternity process (discussed below), focuses on the status of the child, not necessarily that of the father.
In order to legitimize a child born in North Carolina, one of two things can happen. First, the father and the mother can marry. After the marriage, the state will automatically consider the child as legitimate.
If for whatever reason, the father and mother do not want to marry, then the second option is to involve the court system. The father will want to file a legitimation petition requesting legitimacy of his child. The father must name both the mother and the child as parties to the action. During the action, the father must convince the court that he is the child’s father. If after reviewing the evidence that the father presents, the court is satisfied and believes it, then the court will grant the petition and will declare the child legitimated. After that, the state will issue a new birth certificate containing both the mother’s and the father’s names. When legitimacy is established, paternity is not an issue.
As already discussed, legitimation is more about the status of the child. Paternity, on the other hand, concerns the status of the father to the child. In other words, is a man the father of the child at issue? However, even if paternity is established, that does not necessarily mean that the state will consider the child as a legitimate one.
Paternity issues usually arise within or are attached to other court proceedings, such as suits for child support. Also, unlike the legitimacy action, anybody can file a paternity action—even the state can file the action if it believes it is necessary. If the court finds paternity, then the rights, duties, and obligations of the father will become the same as if the child was the legitimate child of the father, especially with respect to custody and support of the child.
Your Child, Your Fight, Our Help
Whether you are interested in establishing the legitimacy of a child to let the state know that the child is yours or you are interested in establishing paternity, so that the father finally helps with the child’s care, you will want to have somebody on your side. Navigating the differences between legitimation and paternity, finding and drafting the proper paperwork, and interacting with the North Carolina court system can become daunting after a while. When it comes to your family, you do not want a daunting process—you want a smooth process. Make sure to call the family law attorneys at Powers Landreth PLLC in Charlotte today to create such a smooth process for you.
When a divorce involves children, the North Carolina court system may have to help the parents determine how the children will spend their time between the two parents. In an earlier post, we briefly discussed child custody orders and explained that they were somewhat of a last resort in instances where the parents themselves could not agree on a custody arrangement.
After a custody order is set into place, it is usually in the best interests of everybody involved to abide by the order. However, custody orders are not set in stone. The courts can revisit them. Therefore, sometimes, one party will seek to modify a prior custody order.
According to North Carolina law, and as reaffirmed in a recent North Carolina Court of Appeals case, Laprade v. Barry, in order to modify a court child custody order, the party that argues for modification must show that a substantial change of circumstances is affecting the welfare of the child at issue. This change does not have to be a negative or harmful change against the child—it must simply be a substantial change.
After analyzing the evidence, if the court determines that a substantial change has occurred or is occurring, the court must then determine whether it would be in the best interests of the child to modify the custody order. When it comes to child custody issues, the courts generally want to know whether a certain decision will or will not be in the best interests of the child. So, if a custody order modification is not in the best interests of the child, then the parents must continue to abide by the existing custody order.
In Laprade, the family had an existing custody order. The court gave primary physical care and custody to the father. The mother had secondary custody, and this was primarily because of actions she would take, such as repeatedly taking the child to the doctor alleging abuse from the father and reaching out to law enforcement with false claims.
In April of 2014, the mother argued that there was a substantial change of circumstances, pointing to things such as how the father’s girlfriend was the one primarily taking care of the child when it came time for the child to be with the father. After analyzing the evidence in the case, the court concluded that the circumstances had changed. For instance, the mother no longer took the child for unnecessary doctor visits and she no longer contacted law enforcement unnecessarily. Thus, in the court’s eyes, the mother’s circumstances changed for the better.
On the other hand, the father’s did not; they worsened. In fact, the court indicated that the father had poor communication habits with the mother, would not allow the child to talk to the mother in private while under his care, and refused to give the mother his girlfriend’s contact information even though the girlfriend substantially cared for the child.
Ultimately, according to the court, there was a substantial change of circumstances, and the best interests of the child would dictate to modify the custody order.
Your Child Custody Order
Going through a divorce can be tough. When children are involved, things might become harder. However, they do not have to be unbearable. We want to make sure that you get the custody arrangement that you deserve with your children. That is why we are here ready to help you through the process. Make sure to contact Powers Landreth PLLC in Charlotte today with your child custody needs.Learn More
Appearing before a judge in court, not to mention cases that involve a jury, can be intimidating. For victims who have been sexually assaulted, emotionally tormented, or physically beaten, facing the perpetrator in court can be a truly traumatic event. Luckily, an attorney will help walk you through this process and ensure that you are ready when the time comes to face your violent partner, or will help your child feel secure, brave, and truthful. Additionally, there are new options emerging in North Carolina to help witnesses and victims in court, such as the use of courthouse therapy dogs.
Courthouse Dog, Teghan, to be First Therapy Dog Used in North Carolina Court
While the concept is still catching on in North Carolina, many other states have adopted the use of courthouse dogs as sources of therapy during high-stress cases for people exposed to domestic violence, and other victims. Recently, Johnston County became the first to allow the use of a courthouse dog, according to WRAL News. Teghan, a yellow lab, will help ease the pain, fear, and anxiety that many people feel in Johnston County. Local businesses have paid for veterinary costs, the dog’s training, and other expenses all in an effort to level the playing field for victims in court.
How the Defense Uses Your Anxiety, Fear, and Other Emotions to Your Disadvantage
Being confident, articulate, and calm in court is a vital part of your case’s success, whether you are appearing before a judge or a jury. This is always much easier said than done, as even preparation by your attorney can still leave you with high strung nerves. For Charlotte victims of domestic violence, sometimes no amount of practice can prepare them for facing their abuser in court. According to the U.S. Department of Justice, some of the most common mistakes that witnesses or victims make on the stand include:
- Not speaking clearly or loudly;
- Failing to understand the question;
- Appearing disheveled or uneasy;
- Losing their temper;
- Not fully explaining yes or no questions with further detail;
- Failing to appear positive or confident;
- Volunteering information; and
- Not abiding by the courtroom rules.
A courthouse therapy dog may provide the reassurance, comfort, and feeling of security to put many of your anxieties to rest. While a therapy dog may not be available in your case, a compassionate attorney will use other methods and strategies to help you in the courtroom.
Enlist the Help of an Experienced Charlotte, North Carolina Attorney Today
A compassionate domestic violence attorney with experience in such cases will understand the fragile emotional and psychological state that you are coming from. They will provide professional preparation and do everything in their power to put you at ease for your time in court. If you are seeking relief from an abusive relationship, please feel free to contact the Charlotte attorneys of Powers Landreth PLLC today or at your soonest availability.
When a marriage comes to an end, child custody is often one of the most hotly contested items throughout the divorce process. But what happens if there are stepparents/children involved? Does the biological parent always end up with his or her children, or does the stepparent ever seek and obtain custody? What about visitation rights of stepparents, or even stepgrandparents?
Study Finds that for Half of Children of Divorced Stepfamilies, a Strong Relationship with the Stepparent Remains Through Adulthood
A recent study found that the bonds created between stepchildren and their stepparents can last a lifetime even after the child’s biological parent and stepparent got divorced. According to one of the paper’s authors, Marilyn Coleman of the Department of Human Development and Family Science, “For a substantial portion of these children’s lives, they’ve been living with a stepparent, who, in many cases, became a parent to them.” When that strong relationship can be shown and proven to the court, there is a much greater chance of that stepparent being given partial custody or visitation rights. Coleman goes on to say that when “the couple breaks up, the family breaks up. . . what happens to these kids?
Stepparents may have invested a lot of time, a lot of emotion in raising a child and then end the relationship completely.” This emotional investment goes two ways: with the child and their stepparent. The bond is often so strong that it lasts through childhood and continues into adulthood, which was shown in half of the study group. Severing this relationship prematurely and coldheartedly through a court order can be traumatic for children of all ages, who seek regularity and routine during times of stress, such as divorce and the months and years of adjusting afterwards. Terminating a strong relationship between the child and their stepparent may be seen as not in the child’s best interest. Coleman finishes with, “Sometimes, there’s an assumption that when the relationship ends, there’s no need to continue ties. But for children who have grown up viewing someone as a parent, it may not be so easy for them to lose that relationship.”
Is it in the Best Interest of the Child?
It would be incredibly rare for the court to give a stepparent sole custody unless the biological parent has a history of substance abuse, mental illness, a severe disability, a criminal history, or charges of spousal or child abuse. Joint custody would be more likely, especially if the stepparent had been a father or mother to the child since a very young age. Visitation rights would also be a very tangible goal for a stepparent.
Call Powers Landreth PLLC Today
According to the Stepfamily Foundation, 1,300 new stepfamilies are formed every day. Many of these marriages come to an end. If you wish to seek child custody or visitation rights as a stepparent, or believe that your former spouse would not make a good guardian of your biological child, we at Powers Landreth PLLC are here to answer any questions you may have concerning issues of custody and visitation rights of stepparents. Contact our Charlotte family law team today for assistance.
Stress, pressure, and fear will make ordinary people do unordinary things–manipulative and even deceitful things. Some divorcing spouses go so far as to make up stories about their partners that damage their reputation and chances to be granted child custody, marital property, or alimony. If you are facing such accusations, you need to act now by contacting an experienced Charlotte, North Carolina divorce attorney.
False Allegations of Domestic Violence are Rare, But Do Occur During Divorce
While false domestic violence or abuse allegations are rare, they do affect spouses negatively during divorce. Specifically, a protective order (50-B) against one of the spouses could seriously impact the decision of the judge in many circumstances. According to research and reported by the Colorado Coalition Against Domestic Violence, in 63 percent to 74 percent of domestic violence cases, there is sufficient evidence that abuse occurred. In the remaining cases, there is insufficient evidence or a mistaken belief that abuse occurred. Very rarely does a person make a false allegation, which makes it all that much more difficult to prove in court.
Accusations of Drug or Alcohol Addiction, Sexual Abuse, or Child Abuse and Neglect Can Destroy a Parent’s Chances of Custody
Allegations of child sexual abuse during divorce cases only make up about six percent of cases, though at least two thirds of those cases are substantiated by evidence. Other allegations that could seriously jeopardize your ability to receive child custody, or even visitation rights, include:
- Alcohol or drug use;
- Child abuse;
- Spousal abuse;
- Animal cruelty;
- Committing crimes without getting caught; and
- Exposing the child to inappropriate activities or material.
Gambling, Criminal Allegations Affect Asset Division and Alimony
Even though North Carolina is an equitable distribution state, as per § 50-20, meaning that marital property is divided “fairly,” though not necessarily evenly, an accusation of abuse, an addiction, committing a crime that lead to a criminal record, or other offenses could mean that you are not awarded your fair share of the marital property. Because North Carolina can is a no-fault state for divorce, meaning that the court does not “care” in many instances who caused the divorce and will go ahead with equitable distribution of assets, there are some scenarios where allegations could disrupt this. For example, if one spouse spent a lot of money gambling, on another sexual partner, or somehow deprived the family of income in some other unfaithful, deceitful, or dishonest manner, such as committing a crime, the court may side with the other spouse that cast doubt on the other. The court may not divide the assets or allocate alimony in the same manner as it would had no false allegations been made.
Contact Powers Landreth PLLC Today for Experienced Charlotte Divorce Legal Counsel
The Charlotte attorneys at Powers Landreth PLLC will help you clear your name from any false accusations and ensure that you are given a fair chance at child custody, visitation, spousal support, and asset division. Contact us today for assistance; our attorneys are happy to answer any questions you may have.
You have likely heard of joint custody, where you and the child’s other parent share legal responsibility for the child and, usually, the child stays with you part time and the other parent part time. Split custody, on the other hand, is a situation in which your two (or more) children’s living arrangements are split between you and the other spouse. For example, your 10-year-old son may live with you while your seven-year-old daughter lives with the other parent. The court usually frowns upon split custody for a variety of reasons. The average North Carolina family that has children has more than one. In fact, the average is 1.75 for families that do have children, according to the Census. We understand that there are many ways that child custody can go, and split custody may or may not work for you and your children.
Sibling Relationship is Lost
With a split custody arrangement, the sibling relationship between the two children would be lost or severely limited. The children would likely not see each other very often, even if you and the other parent had visitation with the other child on the weekends or if their time together with the same parent overlaps occasionally. The North Carolina court usually believes that it is in both children’s best interest to live together and, if joint custody is an option, to move between the two households as a pair instead of individually. During divorce, or any time of despair or uprooting of normal life and routine, a sibling can be the most beneficial part of a young child’s life. According to The Only Child Project, and reported in the Huffington Post, “Without a sibling to share the burden or ease his pangs, an only child’s experience of divorce is significantly higher than other children.”
Split Custody Can be a Good Option if the Sibling Relationship is Already Very Strained, or for Other Reasons
While it used to be much more common to split up siblings a few generations ago due to possible financial strains that one or two of the parents might have, in today’s times this is remedied by child support. Although not a perfect system, due to the commonality of delinquent payments, child support negates the reason for split custody. However, if the sibling relationship is already at an unhealthy state and serious fights and arguments are frequent, there may be grounds for a split custody agreement. There may be other reasons to pursue a split custody agreement as well, such as a very wide age gap between the two children. For example, maybe one child is new baby set to live with the mother in a new city, while the other child is about to go off to college in a year and wishes to stay with the parent that is staying in the old home. There are many scenarios where split custody may be a viable option.
Call a Charlotte, North Carolina Attorney for Help Today
Our attorneys can help make split custody possible, or conversely, can help to ensure that split custody does not occur if the other parent wants split custody and you know that it would not be a healthy decision to make on behalf of your children’s well being. Contact Powers Landreth PLLC in Charlotte today to speak with an attorney.