NC Family Law

Question 1

Premarital Agreements (“Prenups”)

Answer 1

NC adopted the Uniform Premarital Agreement Act (UPAA)

Alters the rights of one spouse in the property of another, or reclassifies what would typically be marital property.

NC courts will enforce so long as voluntary and not:

1. Unconscionable when executed; or
2. Without full disclosure of other spouse’s assets/obligations

Question 2

Who bears burden of proof when invalidating prenup?

Answer 2

The party seeking to invalidate

Question 3

What subject matter can prenups relate to?

Answer 3

Typically property, but can be anything not contrary to public policy. Clauses against public policy will be severed and not enforced.

Example: Can’t change grounds for divorce or limit a child’s right to support.

Question 4

Separation Agreements

Answer 4

Used when parties still married but decide to live apart.

Enforceable so long as meets general K requirements, is in writing, signed, and notarized.

Cannot adversely affect:

1. Child’s right to support; or
2. Spouses right to post-separation support

Question 5

Settlement Agreements

Answer 5

Resolves issues that would typically be resolved in a divorce action.

Enforceable so long as meets general K requirements, in writing, signed by parties, and notarized.

Again, can’t violate pub policy.

CAN waive the right to alimony because the spousal obligation of support ends absent court imposition!

Question 6

Separation Agreement v. Settlement Agreement

Answer 6

Separation Agreement = Still married, living apart

Settlement Agreement = Divorced

Question 7

Premarital Disclosure

Answer 7

Spouse must have a chance to get full disclosure re: financial assets/obligations of other spouse.

CAN BE WAIVED.

Fulfilled if spouse had a chance to find out but did not.

Question 8

Jurisdiction and Venue

Answer 8

Jurisdiction is proper in district court. At least one party must be domiciled in NC and have lived there for six months. This cannot be waived.

Exception: Military personnel temporarily stationed in NC for at least six months have PJ.

Venue is proper in any county where either spouse lives.

Question 9

Marriage Requirements

Answer 9

1. License
2. Ceremony (NO common law marriage in NC)
3. Substantive Requirements, i.e. capacity, age, kinship, gender.

Question 10

Recognition of Foreign Marriages

Answer 10

Generally, NC will recognize marriages validly entered into in other states (including comlaw).

Exception: Violates PubPol (i.e. gay marriage)

Question 11

Breach of Promise to Marry

Answer 11

This is a recognized action in NC! Jilted fiancee can recover financial losses suffered in reliance and can also get punitive damages. Look out!

Engagement ring will likely go back to donee as a “conditional gift.”

Question 12

Alienation of Affections

Answer 12

1. Marriage w/ love and affection
2. destroyed
3. by the wrongful acts of 3rd party

Note: Can be before OR after a separation!

3 Year SOL from date affection destroyed.

Question 13

Criminal Conversation

Answer 13

1. Marriage
2. Sex (pre OR post separation)

3 Year SOL runs from date of discovery

Question 14

Annulment of Marriage

Answer 14

Invalidates a marriage that is void/voidable because parties fail to fulfill all legal requirements for marriage or b/c there was a legal impediment at the time the marriage was supposed to be entered into.

Question 15

Divorce from Bed & Board

Answer 15

Not actual divorce - allows parties to live separately by court ordering one to move out of marital home.

Requires finding of fault one one of six statutory grounds:

1. Abandonment
2. Cruelty
3. Indignities
4. Alcoholism/Addiction
5. Adultery

Plaintiff-spouse must also be without fault, similar to doctrine of clean hands!

Question 16

Defenses for B&B Divorce

Answer 16

1. Recrimination (unclean hands)
2. Collusion (false assertion)
3. Connivance (helped make it happen/encouraged)
4. Condonation (knowing forgiveness)

Note: Cruelty cannot be forgiven

Note: Condonation can be conditional (i.e. don’t do it again)

Question 17

Post-Separation Support

Answer 17

The spouse who files must be a dependent spouse who is in need of support in order to live.

The court will consider the dependent spouse’s resources and needs and the other spouse’s ability to pay, along with other factors including:

1. standard of living parties enjoyed while living together
2. each party’s income and earning potential
3. debt obligations, including existing financial support obligations imposed by law
4. reasonable living expenses

NO PSS if marital misconduct, unless BOTH parties engaged…court then may weigh and decide.

Question 18

Duration of Post Separation Support

Answer 18

Lasts until:

1. Date decreed by court
2. Order for absolute divorce (may change to alimony)
3. Cohabitation with another (sharing responsibilities)

Question 19

Grounds for Absolute Divorce

Answer 19

Fault NOT necessary in NC!

1. Parties separated 3+ years due to incurable insanity of one spouse; or
2. continuous separation for one year; moving party must have intent to live apart and maintain a separate residence; can’t resume cohabitation!

Question 20

Defenses in No Fault Divorce

Answer 20

Reconciliation will prevent divorce if parties move back in together, holding themselves out as husband/wife, even without sex (TOTC test)

Effects:

1. Restart statutory one year wait period for divorce
2. Void any unexecuted portions of separation agreement
3. change date for accumulation/valuation of marital property

Note: Mere isolated sex acts do NOT toll the one year statutory period!

Question 21

Equitable Distribution

Answer 21

Three step process:

1. Figure out what parties own that is subject to ED (i.e. what is marital, separate, divisible property)
2. Determine net value subject to ED
3. Determine what distribution is equitable

Question 22

Separate Property

Answer 22

property that belongs to one spouse or the other; real or personal property (tangible or intangible) acquired by spouse before marriage or after date of separation; could also be acquired by devise, descent, or gift.

Question 23

Marital Property

Answer 23

(a) all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned; and
(b) all rights that are vested or non-vested in pensions, retirement, and other forms of deferred compensation

Question 24

“Source of Funds” Doctrine

Answer 24

NC recognizes “dual nature” property that can be partially marital and partially separate. For certain kinds of property, acquisition is ongoing, so property is acquired as it is paid for.

Example: W has $20k equity in house she purchased prior to marriage. After marriage, $20k more paid on mortgage. Of the $40k equity, half is marital and half is separate.

Question 25

Divisible Property

Answer 25

Looks like marital property, earned during marriage, but comes to one of spouses AFTER separation.

Question 26

Valuation of Divisible/Marital Property

Answer 26

Determined as of date of separation

Marital debts must also be factored in

No required method for valuing businesses, but courts should factor in present value of goodwill.

Question 27

Equitable Distribution at Common Law

Answer 27

At common law: property ownership was based on title, and whoever had title owned the property; therefore, the husband got most of the property, and the wife would have to have alimony.

NO LONGER LAW IN NC

Question 28

Equal v. Equitable Distribution

Answer 28

PRESUMPTION that equal distribution of marital/divisible property = equitable.

Courts will accept valuation in separation agreement if seems to be accurate division of assets.

If court deems equal NOT equitable, looks at statutory factors AND any other factors it deems relevant.

Question 29

Statutory Factors for Unequal Equitable Distribution

Answer 29

1. Income, Assets, Liabilities of each party
2. Support Obligations from prior marriages
3. Duration of marriage / age & health
4. Need of parent with custody of children to occupy/own marital residence & effects
5. Expectation of non-marital deferred compensation
6. Equitable claim to acquisition of marital property
7. Contribution to spouse career/education
8. Contribution to increase value of separate property
9. Liquid or non-liquid nature of all property subject to ED
10. Difficulty evaluating asset or business, economic desirability to retain such assets free of interference from other
11. Tax consequences if property liquidated
12. Acts of development or waste towards ED property
13. potential consequences of death of either party before entry of order for property distribution
14. Any other factors that the court finds just and proper

Question 30

In-Kind Distributions

Answer 30

Each spouse will typically get a portion of each category of property (i.e. splitting shares of stock).

Presumption that In-Kind distribution is equitable can be rebutted by evidence property is:

1. NOT susceptible to division (one of a kind); or
2. Closely held business, dividing would undermine value and/or control.

Rebuttal will result in a distributed award (money) which is NOT considered to be alimony.

Question 31

Factors that CANNOT be considered by court in Equitable Distribution

Answer 31

1. Marital Fault (i.e. adultery or cruelty)
2. Alimony
3. Child Support

Question 32

Equitable Distribution of Future Interests

Answer 32

(1) To be subject to equitable distribution: marital property must be “presently owned.”
(2) North Carolina law does not permit the court to consider a party’s future inheritance under the will of a person not yet deceased .
(3) Stock options ARE marital property if vested and exercisable upon date of separation.

Question 33

ED of Pension and Retirement Benefits

Answer 33

1. Benefits earned before marriage = separate
2. Benefits earned during marriage = marital
3. Doesn’t matter if vested/unvested during marriage
4. Can pay out as earned or in lump sum

Question 34

ED of Personal injury Awards

Answer 34

(1) Pain and suffering portions of the award: attributable to that spouse alone = separate property
(2) Compensation for economic loss (lost wages, medical expenses, etc.) = marital property

Question 35

When Shall Alimony Be Awarded?

Answer 35

The court shall award alimony, either for a specified or indefinite term, to the requesting party upon a finding that:

1. party seeking alimony is dependent; and
2. the other spouse is supporting spouse (i.e. has resources to support and has been supporting all along); and
3. award of alimony is equitable (factors)

Question 36

Effect of Sexual Misconduct on Alimony

Answer 36

Any illicit sexual behavior, including adultery, by the dependent spouse during the marriage absolutely bars alimony, regardless of need, unless the supporting spouse also committed illicit sexual behavior.

• If both spouses committed such acts prior to separation, then the court has the discretion to deny or award alimony.
• Any act of illicit sexual behavior by either party that has been condoned by the other party must not be considered by the court.

Question 37

Alimony Factors

Answer 37

1. marital misconduct;
2. relative earnings and capacity;
3. ages & mental, physical, or emotional conditions;
4. amount/sources of earned and unearned income of both;
5. duration of marriage;
6. contribution to education, training, increased earning power
7. extent to which earning power, expenses, or financial obligations will be affected by custody of a minor child;
8. standard of living established during the marriage;
9. education of the spouses and time necessary to acquire education/training to enable spouse seeking alimony to find employment to meet reasonable needs;
10. relative assets and liabilities of the spouses including legal obligations of support;
11. property brought to the marriage;
12. contribution as homemaker;
13. relative needs of the spouses;
14. tax ramifications;
15. any other factor relating to the economic circumstances of the parties that the court finds to be just and proper; and
16. the fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties’ property.

Question 38

License Revocations

Answer 38

If the court finds that an obligor is willfully delinquent in child support payments equal to at least one month’s support or has willfully failed to comply with a subpoena, the court may revoke some or all of the obligor’s licensing privileges In the state until the support is paid in full or the subpoena complied with.

Question 39

Best Interest of the Child Standard

Answer 39

The court is directed to award custody of minor children to the person, agency, organization or institution as will best promote the interest and welfare of the child.

In making this determination, the court must consider all relevant factors, specifically including “ASS”:

1. Acts of domestic violence between the parties;
2. Safety of the child; and
3. Safety of either party from domestic violence by the other party

An order for custody must include findings of fact that support the determination.

Question 40

Modification of Property Distribution Orders

Answer 40

NOT HAPPENING unless a showing of fraud