North Carolina Flashcards
1
Q
What are the basic requirements for marriage in North Carolina?
A
- You must be legally able to consent;
- There must be consideration (mutual promises and responsibilities); and
- Rights and obligations
2
Q
What are the license requirements for marriage in North Carolina?
A
- You must be at least 18;
- Neither party may be married at the time of the new marriage;
- Neither party may be closely related by blood (with the exception of first cousins);
- Both parties must understand the agreement; and
- Neither party can marry if it is a sham.
3
Q
When may a person under 18 get married?
A
- If they are between 14 and 16 and pregnancy is involved; or
- If the person is over 16 and under 18 and has parental consent.
4
Q
What are the rules surrounding solemnization?
A
- No witnesses are required;
- Both parties must be present;
- Both parties must express the present intent to be married to each other in the presence of someone who is authorized to serve as an officiant.
5
Q
What are the heartbalm actions?
A
A civil suit for money damages based on the harm to the plaintff’s reputation arising from a broken engagement or interference with the marriage. The 3 actions are:
- Breach of the promise to marry;
- Criminal conversation; and
- Alienation of affection
Note: The statute of limitations is 3 years.
6
Q
What is the breach of promise to marry?
A
The P may sue the D if they break a promise to marry without justification.
7
Q
What is criminal conversation?
A
A P may recover from a third party who engages in sex with the spouse if:
- The P and the spouse are married;
- The third party had sex with P’s spouse without P’s permission; and
- The P and the spouse were not legally separated at the time the sex occurred.
Note: The limitations period begins to run when the plaintiff should have known about the affair.
8
Q
What is alienation of affection?
A
P may recover from a third party who interferes with the marriage if:
- The P and the spouse had a loving marriage;
- The spouses’ love was diminished or destroyed; and
- The loss of affection was created by the 3rd party’s malicious intent conduct prior to the spouses’ separation.
Note: The third party need not be in NC at the time of the conduct. Sex is also not required.
9
Q
What is annulment?
A
An annulment states that a valid marriage never existed at all. The marriage was either void or voidable.
10
Q
What is a void marriage?
A
A void marriage is treated as if it never happened and it may be attacked by a third party even after one of the spouses has died.
11
Q
What is the only reason for a void marriage in NC?
A
Bigamy
Note: The bar examiners like to test this because it is a distinction.
12
Q
What is the defense to bigamy?
A
If the parties had a good faith belief that the previous spouse was dead.
Note: If the previous spouse is found alive, the second marriage is void.
13
Q
When does the presumption of death arise?
A
7 years of unexplained absence.
14
Q
What is a voidable marriage?
A
A voidable marriage is valid until it is challenged. A judicial decree is required to dissolve the marriage.
15
Q
What defenses are permitted in voidable marriages?
A
Courts recognize equitable defenses such as unclean hands, laches, and estoppel.
16
Q
What are the grounds for a voidable marriage?
A
The grounds for a voidable marriage are:
- Age;
- Impotence;
- Incest;
- Representation of pregnancy; or
- Want of will or understanding
17
Q
What is required for a voidable marriage due to age?
A
A party to a voidable marriage may have it annulled if:
- They are under the age of 16; and
- Did not have parental consent to marry
Note: Only the underage party may seek to have the marriage voided. If they remain in the marriage past the age of 18, they have ratified the marriage.
18
Q
What is required for a voidable marriage due to impotence?
A
If one party is physically impotent at the time of the marriage, unless the other party knew about the condition before the marriage.
19
Q
What is required for a voidable marriage due to incest?
A
A marriage is voidable if it is between people nearer of kin than first cousins or between double first cousins.
20
Q
What is required for a voidable marriage due to representation of pregnancy?
A
This marriage is voidable when:
- The parties married believing that the female was pregnant;
- The parties separated within 45 days of the marriage;
- The separation was continuous for one year; and
- No child was born to the parties within 10 months of the date of separation.
21
Q
What is required for a voidable marriage due to want of will or understanding?
A
At the time the party entered the marriage, he or she did not understand the nature of the marriage contract or did not enter the marriage voluntarily.
Note: This is essentially a lack of capacity. Watch for elderly people who may be lucid here and there.
22
Q
What are the legal consequences of annulment?
A
- Equitable distribution is not available;
- Permanent alimony is not available;
- Post separation support and attorney fees may be available; and
- Child custody and support are unaffected as they are not based on the marriage.
23
Q
What is absolute divorce?
A
It is the legal dissolution of a marriage and may only be brought by a spouse.
24
Q
What are the two recognized grounds for absolute divorce in NC?
A
- Incurable insanity (rare); or
- Separation for one year (no fault)
25
What are the requirements for a one-year separation divorce?
1. The spouses have lived separate and apart for one year;
2. Either or both parties have resided in NC for the 6 months immediately preceding the filing of the petition; and
3. Venue is proper in the county where either party resides
26
What are the defenses to a no-fault divorce in NC?
There are no defenses to the no-fault divorce in NC.
27
What is reconciliation in relation to divorce?
This is a resumption of marital relations and happens when the parties come back together. Isolated sexual encounters do not count.
Note: Reconciliation will end the separation period restarting the clock and will void any separation agreement.
28
What is divorce from bed and board?
This is a form of court ordered separation that:
1. Does not end the marriage;
2. Permits the parties to live apart; and
3. Requires the finding of fault on the part of the defendant spouse.
Note: There is no waiting period for this type of divorce.
29
What is available for the harmed party in a divorce from bed and board?
1. Permanent alimony;
2. Post separation support; and
3. Attorney's fees
30
What are the grounds for divorce from bed and board?
1. Abandonment;
2. Maliciously turning out;
3. Cruel or barbarous treatment;
4. Indignities;
5. Drug or alcohol abuse; and/or
6. Adultery
Note: Look for all applicable grounds. More than one may apply. Finding of fault is required.
31
What is abandonment in relation to divorce from bed and board?
The defendant spouse:
1. Leaves the marital home;
2. Without justification;
3. Without the other spouse's consent; and
4. Has no intent to return
Note: NC recognizes constructive abandonment which occurs when the spouse doesn't leave but acts in a way in which they might as well have left.
32
What is maliciously turning out in relation to divorce from bed and board?
This is the opposite of abandonment and occurs when the defendant spouse kicks the plaintiff spouse out of the marital home.
33
What is cruel and barbarous treatment in relation to divorce from bed and board?
This occurs when the defendant spouse treats the plaintiff so badly that it actually endangers the plaintiff's life. This must be specific and it includes emotional stress and abuse.
34
What is drug and alcohol abuse in relation to divorce from bed and board?
When the defendant spouse abuses alcohol and drugs such that they become intolerable and burdensome.
35
What are the defenses to divorce from bed and board?
1. Recrimination or unclean hands;
2. Condonation;
3. Connivance; and
4. Collusion
36
What is recrimination or unclean hands?
Recrimination is when both parties to a marriage have committed a marital wrongdoing of like conduct.
Unclean hands is when the plaintiff's behavior or acts are questionable but the acts need not be the same or similar.
37
What is condonation?
When the harmed spouse:
1. Has knowledge of the full extent of the fault;
2. Forgives the misconduct; and
3. Resumes the marriage
38
What is connivance?
When the one party consents to or participates in the marital wrongdoing.
39
What is collusion?
When both parties to the marriage have conspired to fabricate grounds for divorce. Note: This is not common as NC now has no fault divorce.
40
When does NC have jurisdiction to decide all matters of a divorce?
When both parties are subject to personal jurisdiction within NC.
41
When does NC lack the ability to determine all matters of a divorce?
When one party is not domiciled in NC.
42
When must a party file for equitable distribution?
Anytime after separation, but before the divorce decree has been entered.
43
What are the three types of property in a divorce?
1. Marital property;
2. Divisible property; and
3. Separate property
44
What is marital property?
Marital property is generally any property that was acquired during the marriage without regard to title.
45
When is marital property valued?
At the date of separation.
46
What is divisible property?
Generally it includes:
1. Passive increases or decreases in the value of marital property that occur _after_ separation and before distribution of the property; and
2. Property rights received _after_ the date of separation but before the date of distribution earned during the marriage. (A bonus earned after the parties separated but was earned during the marriage.)
47
What is separate property?
Property that belongs to one spouse that is not divided and includes:
1. Property acquired by one spouse before the marriage;
2. Property acquired by one spouse after the parties separate;
3. Property exluded by the parties' valid agreements;
4. Property acquired by gift or inheritance; and
5. Property acquired in exhange for separate property
48
What is not considered when equally distributing property?
Fault
49
What is the general rule about distribution of property?
While there is an extensive list, the general rule is that the court will take into account all factors surrounding the marriage, property, and divorce and then divide the property as it sees fit.
50
What is the neccessaries doctrine?
To prevail, a medical establishment must prove:
1. The medical services were provided to a spouse;
2. The medical services were necessary for the health and well-being of the spouse;
3. The parties were married at the time the services were provided; and
4. Payment for the necessary services has not been provided.
51
What is the defense to the necessaries doctrine?
The only defense is that the medical establishment had actual knowledge of the separation of the parties.
52
What is post-separation support?
It is available after the parties separate but before a judgment of absolute divorce has been granted.
Note: Fault can be considred when ordering post-separation support.
53
When does post-separation support end?
At the earliest of:
1. Date specified in the court order awaiting support;
2. Entry of a court order regarding alimony;
3. Entry of a judgment of abolute divorce;
4. Cohabitation or remarriage of the dependant spouse; or
5. Death of either spouse.
54
What is alimony?
It is the obligation of one spouse to provide the other with support in the form of income after an absolute divorce.
55
When may the court deny alimony?
The court may deny alimony if the spouse committed marital misconduct.
Note: This differs from many states and may be on the bar exam. The court must make specific findings as to the existence of the misconduct.
56
What are some forms of marital misconduct?
1. Illicit sexual behavior or adultry;
2. Involuntary separation as a result of a criminal act;
3. Abandonment;
4. Cruel or barbarous treatment; and
5. Drug or alcohol abuse
57
When can there be a terminatinon or modification of post-separation support or alimony?
Upon the motion of either party. The party seeking modification or termination must demonstrate a significant change in circumstances.
Note: A party who voluntarily or willfully reduces their income will not receive a reduction in support payments.
58
What circumstances will end alimony or post-separation support as a matter of law?
1. Death of either spouse;
2. Remarriage of the dependant spouse, even if annulled;
3. Cohabitation by the dependant spouse, if it looks like a marriage; or
4. The time specified in the court order
59
At what point does child support end?
Typically at 18 unless:
1. The child has been emancipated; or
2. The child remains in high school or secondary school at which point it terminates at 20;
3. If the child gets married;
4. If the child joins the military;
5. Upon the death of the child or paying parent; or
6. If the parental rights of the paying parent are terminated
60
When are grandparents required to provide child support?
Parents of a minor, unemancipated child who is the parent of a child will share primary liability for their grandchild's support with the minor parent until:
1. The minor parent turns 18; or
2. Becomes emancipated
61
What is the UIFSA and who has adopted it?
It is the Uniform Interstate Family Support Act and it has been adopted by all 50 states.
62
How may a state use the UIFSA to exercise jurisdiction of someone out of state?
The UIFSA contains long arm provisions that allow courts to exercise jurisdiction over out of state parents. Look for a compact by the parties to create jurisdiction.
63
How does NC determine the amount of child support?
NC uses the income shares model and provides that each parent should provide an equal proportion of their income to support the child.
Note: There is a rebuttable presumption that the amount set by the guidelines is correct. The court must set forth specific findings to deviate from that amount.
64
When may NC modify or vacate child support payments?
At anytime so long as the party requesting the modification shows a substatial change in circumstances regarding the child's needs or the parents' financial situations.
65
When are retroactive increases in child support granted?
When there is a material change in circumstances affecting the welfare of a child brought about by a sudden emergency.
66
Who may issue the child support order?
Only the issuing state so long as that state retains any jurisdiction of any party.
67
What is legal custody?
The right of a parent to make major decisions regarding the minor.
68
What is physical custody?
The right to have the child live with the parent and the obligation to provide for routine daily care and control of the child.
69
What is joint custody?
This means both parents share legal and/or physical custody.
70
What are the 3 ways a court can exercise subject-matter jurisdiction over a child custody case in the UCCJEA?
1. Initial custody determination (home-state jurisdiction);
2. Significant-connection jurisdiction; or
3. Default jurisdiction
71
What is initial custody determination?
This jurisdiction is available to a state when:
1. It's been the child's home for 6 months or since their birth; or
2. The child is not in the state, but the state was their home in the last 6 months and at least one parent lives in the state.
72
What is significant-connection jurisdiction?
If not state has or accepts home-state jurisdiction, a court in another state will have subject matter jurisdiction if:
1. The child and parent have a significant connection with the state; and
2. Substantial evidence is available in that state about the child that is relevant to a custody determination.
73
What is default jurisdiction?
This occurs as a last option to exercise jurisdiction, and applies when a state has appropriate connections to the child.
74
What is exclusive continuing jurisdiction?
When a court makes an initial ruling in a custody case, they retain jurisdiction until the court determines:
1. Parties no longer reside in the state; or
2. The child no longer has a significant connection to the state.
75
What is the default standard in determining a child custody case?
The best interest in the welfare of the child.
Note: This needs to be mentioned for any case involving children on the bar exam.
76
Who may bring an action for the custody of a child?
Any person may bring the action. However, a fit parent has a constitutional right to the care, custody, and control of their children.
77
What must the court consider when awarding custody?
Domestic violence between the parties.
Note: The court may consider the child's wishes if they are mature enough to express them.
78
Who has rights to visitation?
Generally speaking, the parents both have reasonable visitation rights with the child. Rights do not extend to the grandparents or stepparents unless:
1. The parents are unfit; or
2. The third party has acted in loco-parentis with the child prior to the divorce.
79
When may the court modify a child custody order?
NC applies a change-in-circumstances standard that requires a _substantial and unforeseen_ change since the issuance of the order.
80
What factors are considered in the relocation of the custodial parent?
The court will look at what is in the best interest of the child's welfare and:
1. Whether the move will improve the child's life;
2. What motives each parent has in the relocation or opposing the relocation; and
3. The likelihood of visitation for the non-custodial parent
Note: The burden of proof is on the parent who is objecting to the relocation.
81
When should an application to relocate be made?
In advance of the relocation.
Note: It should be based on anticipated present facts, not speculative ones.
82
When does the child-custody order terminate?
Upon the death of the custodial parent or when the child reaches the age of 18.
83
What is a separation agreement?
A separation agreement is made by a married couple who is planning a divorce.
Note: Generally a court will enforce the order so long as it is not unconscionable or based on fraud. A court may modify provisions related to child support and custody if the terms are not in the best interest in the welfare of the child.
Also, a separation agreement can include an arbitration clause and that will be enforeced by the court.
84
What are the requirements for a premarital or prenuptual agreement?
1. It must be in writing;
2. It must be signed by both parties; and
3. It takes effect upon marriage
85
When is a premarital agreement enforceable?
1. There has been fair and reasonable disclosure of each parties financial status;
2. The agreement is not unconscionable as a matter of law; and
3. The agreement was voluntary
Note: The burden of proving the agreement is invalid is on the party challenging the validity. Discuss procedural rights and if the party knew they could consult counsel.
86
What is adoption?
It is a statutory legal action in which the previous parent-child relationship is terminated and a new parent-child relationship is established.
Note: Petitioners must have been domiciled in the state for at least 6 months prior to petitioning for adoption.
87
In what ways may a natural parent's rights be terminated?
1. The biological parents may voluntarily give up their rights as parents and consent to the child's adoption; or
2. An unwed father may be denied the right to object if he does not demonstrate a commitment to the responsibilities of parenthood
88
Does the prospective adoptee have to consent to adoption?
Yes, if the adoptee is 12 years or older.
89
What is domestic violence?
Domestic violence includes:
1. Attempting to or intentionally causing bodily injury;
2. Creating fear of imminent serious bodily injury or harrassment that rises to the level of emotional distress; or
3. Sexual offenses
Note: NC has tested on domestic violence numerous times on the bar exam.
90
Who are the parties in a domestic violence occurrance?
The perpetrator of the violence must be in a relationship with the victim or be a household or family member.
Note: People who live in the home and aren't relatives can be victims of domestic violence.
91
What are the remedies for domestic violence?
The major relief granted is a protective order prohibiting the abuse of and contact with the victims.
Note: The duration of the order is for a fixed period not to exceed 1 year. It may be renewed for an additional period, but the total time cannot exceed 2 years.
