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Forgive and Forget: Condonation in North Carolina

Forgive and Forget: Condonation in North Carolina

Forgive and Forget: Condonation in North Carolina By Amy A. Edwards Judges have a good deal of leeway in deciding what to do about marital fault and defenses when they are proven in court. Traditional sex roles are rapidly changing in some ways but not in others, and judges react differently to the behavior that constitutes marital fault. Some think fault is very important, but others do not. Marital fault relates to alimony, not equitable distribution, which is the division of marital property. What Are the Marital Fault Grounds? A spouse commits marital fault if he or she abandons the family, commits adultery, “maliciously turns the other out of doors” or “by cruel or barbarous treatment endangers the life of the other.” If a spouse “becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome” that is also marital fault. The last ground of marital fault, known as indignities, is a catchall for bad behavior generally. It occurs when a spouse “offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome.” NC Gen. Stat. §50-7. Consequences of Marital Fault Marital fault is not a requirement for alimony. But if someone commits marital fault, the judge can financially penalize the person receiving or paying support. In cases of adultery, the financially-dependent spouse who cheated cannot receive alimony, and the supporting spouse who is the bread-winner must pay alimony if he or she cheats. The policy is based on the historical tradition of an innocent dependent spouse who was left financially stranded by the other, who left for greener pastures with another romantic interest, for example. What is a Defense to Marital Fault? A defense means that you can be shielded from the consequences the marital fault that you committed. A defense excuses the bad behavior (i.e., the marital fault) and gives the spouse at fault a “clean slate” legally. From our example above, if you are an adulterous supporting spouse without the legal defense of condonation, you are automatically required to pay alimony. The only remaining questions at the point is the amount of alimony to be paid, and for how long. The Defense of Condonation Condonation, condoning bad behavior, is as a defense to a spouse’s marital fault. Black’s Law Dictionary defines condonation...

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What Do Judges Consider in Alimony Cases?

What Do Judges Consider in Alimony Cases?

What Do Judges Consider in Alimony Cases? By Amy A. Edwards The factors guide judges in reminding them of the most important things. Either spouse may seek alimony if he or she earns less than the other in North Carolina, although there’s no specific dollar amount that determines by how much less. While we have guidelines in child support cases that compute an amount based on incomes and certain child-related expenses, we don’t have anything of that nature for alimony. Each party prepares a budget as a trial exhibit, which includes income and living expenses. If the judge awards it, the amount of alimony and how long it will be paid is discretionary. Alimony Factors: Incomes/Benefits NC judges must consider a list of factors in alimony cases. The first factor to consider is how much income each spouse has, and sometimes what a spouse has the capacity to earn. Also considered is unearned income, which is not shown on a W-2 statement, such as dividends, rents, retirement payments, disability, social security payments and employment benefits such as medical insurance (and/or dental and vision insurance), retirement benefits, and marital property and debts. Alimony Factors: Each Person’s Situation The court considers each spouse’s individual circumstance, education, age, physical and mental abilities, and emotional conditions. For example, a 25-year-old spouse and a 60-year-old spouse will be treated differently based on medical conditions and the ability to work. Their needs and expectations, such as the anticipated date of retirement or going back to school, also vary. Marital misconduct of either spouse may also be considered. Alimony Factors: History of the Marriage The court also looks at the standard of living that the parties established during the marriage. How long the parties were married and the contribution by one spouse to the education, training, or increased earning power of the other spouse are other factors. One party might have kept the home-fires burning for the last ten years, caring for the children while the other devoted his or her energy to obtaining a degree or advance in a profession, improving the family income. In fact, the statute also requires the judge to consider the “extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child.” Alimony Factors: Miscellaneous The court looks at family obligations, such as paying child...

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The Top Five Reasons a Divorce Matters in North Carolina

The Top Five Reasons a Divorce Matters in North Carolina

The Top Five Reasons a Divorce Matters in North Carolina By Amy A. Edwards In North Carolina, a spouse can file a claim for divorce only a separation of at least twelve months. Besides the ability to allow someone to remarry, a divorce is important for a number of reasons. This article isn’t legal advice, and it does not cover all of the reasons. But it highlights a few examples of why someone who is served with a complaint absolutely needs to contact a lawyer immediately. Reason #1 – Marital Property Married people who separate can file a claim for equitable distribution, asking the court to divide marital property equally (instead of just relying on which name is on the title or deed). Our state creates a deadline for filing those claims, and the clock starts ticking when a divorce complaint is filed. Failure to properly file for marital property division within the correct time period means it is permanently lost. Reason #2 – Health Insurance Family plans that cover both spouses and any children change the moment a divorce decree is entered. As of that moment, a spouse is no longer “related” for purposes of a family plan because they are no longer a family member. Children of the person who provides health insurance remain on a family plan after a divorce. Reason #3 – Estate Rights Inheritance rights between spouses are completely different from those of non-spouses. This is a very complicated area of the law that can be related to whether a claim for marital property. Examples of potential rights upon the death of a spouse include an allowance of money, the right to a share of the assets if there is no will, and the right to contests a will. Designation as a spouse or former spouse can involve Social Security benefits, military benefits and other survivor’s benefits. Reason #4 – Liens Against the House Married people are sometimes protected from creditors if only one of them created a debt in his or her sole name. For example, the innocent spouse who did not sign a credit card application is usually, but not always, protected from money judgments that would otherwise become a lien against the marital residence. The moment the innocent spouse becomes an ex-spouse, this can trigger a lien against the property even if the debt (such as credit card debt) is not...

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All About Adultery in North Carolina (Part 2 of 2)

All About Adultery in North Carolina (Part 2 of 2)

All About Adultery in North Carolina (Part 2 of 2) Part one of this article looked at adultery as it relates to alimony. In North Carolina, adultery can impact several legal rights, such as a legal separation, inheritance rights, criminal conversation, and even property ownership.   Adultery: Duty of Third Party to Warn Spouse of STD If a husband or wife passes a sexually transmitted disease (STD) to the other spouse as a result of his or her adultery, the innocent spouse may with a civil suit for financial damages against the man or woman who passed the STD to the husband or wife. To successfully prove a claim for negligent infliction of an STD, the victim spouse must prove the source of the STD, and that the infected person knew or should have known he or she was infected with venereal disease. Because it is foreseeable that the two spouses would have intercourse, the infected person has a legal duty to abstain from sexual contact, or at least a legal duty to warn the innocent spouse. Adultery: Criminal Conversation The term criminal conversation (CC) is somewhat misleading. Although it sounds like a crime, it is not. Instead, CC is a civil lawsuit for money damages. A married person may file a claim for CC against the third party who had sexual intercourse with his or her spouse. CC holds that third party financially accountable to the husband or wife for interference with his or her marital conjugal relationship, which is protected by law. Although the unfaithful spouse is not on the hook for financial damages, he or she generally testifies in a jury trial about the acts that took place. Alienation of affections is a completely different lawsuit that addresses alienating or stealing the spouse, regardless of whether there was sexual intercourse. CC is exclusively based on sexual intercourse. Adultery: Divorce from Bed and Board North Carolina recognizes a fault-based claim called divorce from bed and board (DBB), and one of the grounds for it is adultery. A decree for a DBB does not a “divorce” the husband and wife allowing them to remarry. It is a court decree that declares the spouses to be officially separated. This keeps a spouse from committing abandonment if he or she wants to separate. Instead, if a spouse successfully obtains a DBB, the spouse who committed adultery loses spousal rights to certain...

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All About Adultery in North Carolina (Part 1 of 2)

All About Adultery in North Carolina (Part 1 of 2)

All About Adultery in North Carolina (Part 1 of 2) By Amy A. Edwards   Merriam Webster defines adulterate as a verb, an act “to corrupt, debase, or make impure by the addition of a foreign or inferior substance or element.” North Carolina alimony laws don’t call it adultery. Instead, adultery as used in alimony cases is a form of marital misconduct called “illicit sexual behavior.” The definition is “acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in NC Gen. Stat. §14-27.20(4), voluntarily engaged in by a spouse with someone other than the other spouse.” NC Gen. Stat. §50-16.3A.   People have argued about which acts between the spouse and third party meet the definition of illicit sexual behavior. In 2011, a wife unsuccessfully argued that her behavior didn’t meet the standard of illicit sexual behavior because the man she had been with wasn’t able to complete the act they had started but were unable to finish. Romulus v. Romulus (2011). The Romulus case gives an exhaustive list of definitions (starting on page 47) of various acts. Adultery and Alimony In North Carolina, divorce is a “no fault” process based on a full year of separation between a husband and wife. However, we strongly cling to fault in our alimony laws. For many reasons, alimony can be awarded based only on finances, meaning incomes and reasonable living expenses. But if the supporting spouse commits adultery, he or she automatically has to pay alimony. The reverse is also true. The dependent spouse automatically loses alimony if he or she cheats. Other types of marital fault are only factors the judge must consider, and they don’t demand a particular result as adultery does. If both spouses have cheated, the judge then denies or awards alimony in his or her discretion “after consideration of all of the circumstances.” NC Gen. Stat. §50-16.3A. How Do You Prove Adultery? Adultery is almost always a circumstantial case. After all, most spouses aren’t advertising their infidelity. It is rarely proven by direct evidence. Therefore, our law resorts to a standard called the “inclination and opportunity doctrine.” Owens v. Owens, 28 NC App 713 (1976). This means the spouse alleging adultery must prove two things. First, was there an opportunity for the spouse and third party to be together in privacy?  Second, if they had the opportunity to be together, were they inclined (likely) to have sex?   Like any other disputed fact, witnesses may...

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The Life Span of a Typical Case in Pitt County

The Life Span of a Typical Case in Pitt County

The Life Span of a Typical Case in Pitt County Although the term “typical case” is a misnomer, there are certain goals to be met as you wind your way through the local court process. I say goals because the judge has the discretion to adjust the times as may be necessary in each unique case. Life is messy and court is messier, sometimes not fitting into a specific timeline. We’re fortunate to have an official Family Court in Pitt County, staffed with three individuals. They keep the process moving along, by means of local court rules, the development of certain standardized forms to use in routine administrative matters and expedited communication with the judges concerning the most efficient way to handle issues that crop up as the case moves forward. The court expects the case to be resolved within a year if possible. Phase One: File the Lawsuit A family law case is filed at the courthouse by a Complaint, followed by an Answer and Counterclaims in response, and other filings. This process of putting the court and the other party on notice of what relief each party seeks can take up to 6 months after the case is filed. In the meantime, the court might hold hearings on temporary (until the case is finished) child custody, child support or alimony within 2 months after the case is filed. The parties might also choose to use discovery, which might require a deposition, paperwork to be exchanged, or written answers to specific questions by the other party. Discovery by one or both parties can easily take 2-3 months. The party who files for equitable distribution, the division of marital assets, first must complete a very detailed listing of assets and debts called an EDIA, and the other party then files his or her version. This process takes at least 4 months. Phase Two: Negotiation and Mediation Although clients usually know what property and debt there is, and the income of each party, the attorneys don’t really know until he or she reviews the actual evidence (the tax returns, pay statements, self-employment, etc.). Once the attorneys have a general idea of the scope of the marital estate and what the actual disputes are, they can each then decide the best strategy to use. Another fundamental task is to figure out whether the parties already agree on certain matters, such as...

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