Charlotte Family Law Attorneys Tag

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

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

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

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:

1. The rights and obligations regarding property owned by either or both spouses;
2. The right to conduct real estate transactions (purchase, sale, transfer, mortgage, etc.) concerning property;
3. The division of property upon certain marriage-ending events, such divorce or death;
4. The right to change or remove obligations concerning spousal support;
5. The establishment of estate planning mechanisms (wills, trusts, etc.) to carry out all or part of the agreement;
6. The control and ownership of the death benefit from a life insurance policy;
7. The right to choose which legal system governs the agreement; and
8. 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

Children Born Out of Wedlock – Legitimation and Paternity

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.

Legitimation

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.

Paternity

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.

Resources:

ncga.state.nc.us/EnactedLegislation/Statutes/PDF/BySection/Chapter_130A/GS_130A-101.pdf

ncleg.net/EnactedLegislation/Statutes/PDF/BySection/Chapter_49/GS_49-16.pdf

Stepparents’ Child Custody and Visitation Rights

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.

Resource:

stepfamily.org/stepfamily-statistics.html

Split Custody Agreements

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.

Resources:

census.gov/population/socdemo/hh-fam/tabST-F1-2000.pdf

huffingtonpost.com/vicki-larson/post_2200_b_896909.html