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Does North Carolina Recognize Quickie Divorces?

Does North Carolina Recognize Quickie Divorces?

Does North Carolina Recognize Quickie Divorces? By Amy A. Edwards In North Carolina, parties seeking a divorce must show that at least one of the spouses has resided in the state for at least six months when either spouse files for the divorce. As of the date that a spouse files a claim for divorce, the parties must be separated for at least twelve months. When they separated, at least one of the spouses had to intend for the separation to be permanent. Why Do People Want Quickie Divorces? Besides the obvious desire to be legally single and/or remarry, there are several other reasons people get quickie divorces. There are those who want to get a divorce without the one-year separation, or those who haven’t lived in North Carolina for at least six months at the time the divorce is filed. Another incentive for quickie divorces is the payment of alimony. The deadline for filing an alimony claim in North Carolina is the entry of the divorce decree. If there isn’t an alimony claim already pending when the divorce decree is granted, it permanently expires and can’t be filed again. In other words, someone might try to slide the divorce past the other spouse with the hope that he or she won’t have time to file for alimony. The U.S. Constitution Our Constitution protects citizens with the right to due process of law. The courts only have the right to make rulings (i.e., legal authority) if they have jurisdiction. Without it, the court can’t issue valid court orders or decrees. A party to a lawsuit is entitled to legal notice and an opportunity to be heard and defend himself or herself. This usually occurs by service of the summons and complaint, when a sheriff hands a copy of the paperwork to the defendant, or the defendant signs to accept certified mail. Divorces by Other States When one U.S. state enters a decree, another state must generally accept it as valid. The Constitution requires one state to recognize it, giving it what is called full faith and credit. There are exceptions. North Carolina or any state can reject a decree of another state if that decree was fraudulent or the court did not have jurisdiction (i.e., the defendant wasn’t served with a copy of the paperwork). In other words, if it wasn’t valid in the state that issued it, then...

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Is it Time to Change Your Child Support?

Is it Time to Change Your Child Support?

Is it Time to Change Your Child Support? By Amy A. Edwards Unless you have a child support agreement or order for older teenagers, you will probably ask the question of whether and when child support (CS) can be changed. Any time parents can reach an agreement instead of have a trial, CS can be changed so long as the legal documents are properly prepared. But more importantly, if there is no agreement to change CS, what are the grounds a parent can use to ask that the amount be changed? This article looks at that question in the broadest terms and doesn’t get into the many exceptions to the rules or other unique situations. CS is only permanent until a parent files court documents to change or modify it. Until a child is eighteen or graduates from high school, the court has the authority to change the amount, increasing it or decreasing it, as may be necessary over the years. Court Orders: 3 Years or Changed Circumstances? The courts almost always calculate CS by using a formula set out by the NC Child Support Guidelines, which generally use only the gross income of each parents, work-related child-care cost, the number of children each parent has, and the out-of-pocket cost for each child’s health insurance. If you have a court order or a separation agreement that was converted into a court order, either parent may file a motion to modify CS if three years have passed since the last CS order was entered. The law assumes that after three years, it is time to review CS, which will be changed if there is at least 15% difference between the old amount of CS and the new amount of CS based on the current Guidelines. If three years haven’t passed since the CS order was entered, then a parent must show there has been a significant change in circumstances since the date that the last CS order was entered. What Counts as Changed Circumstances? The general rule is that a change in circumstances related to the child (or children) is enough to change child support. If a parent changes jobs and the child’s health insurance cost increases by $300 per month, for example, the change in circumstances merits a change in child support. Another fairly straight-forward change in circumstances is when a parent has a significant and involuntary drop in...

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Putting Humpty Dumpty Together Again: Breach of Contract

Putting Humpty Dumpty Together Again: Breach of Contract

Putting Humpty Dumpty Together Again: Breach of Contract By Amy A. Edwards When they separate after being in a relationship, people who are or were married usually resolve their disputes one of two ways, by obtaining a court order or by a contract usually but not always called a separation agreement. Breach of Contract Failure to do what was promised in a contract is a violation of it, called a breach of contract. This article assumes a valid contract has actually been made, and it doesn’t look at what defenses someone might have if he or she is sued for breach of contract. If you enter into a contract, you are legally obligated to perform accordingly. Contracts are usually enforced by money damages. Like Humpty Dumpty, the court tries to make the innocent party “whole” again, restored to the position they were in before the other person breached the contract. The law gives the person a legal remedy, they are then finished with the matter, and both are off to live happily ever after. No Adequate Remedy at Law Now consider the person in a family law situation. If you are entitled to child support but your ex won’t pay, a legal remedy to enforce the contract would mean that each month after no payment is made, you would sue your ex, have a trial to get a judge to make a ruling, and execute on a judgment for money owed. Needless to say, this legal remedy would be repetitive, expensive and time-consuming. The entire point of child support is to make sure the child is given shelter, food, transportation, etc. Going to court every month would give a completely opposite result. This means the law is substituted with what is called equity. Remedy at Equity When the legal remedy isn’t enough to make you whole again, the law is supplemented by equity. Family law is one of the few times when the court has the ability to rely on equity, which is based on justice and what is right and wrong, instead of relying just on a written statute. The distinction between the law and equity is also noticeable when you see it used as an attorney at law. Property claims for marital property are courts at equity because the judge must divide marital property equally “unless the court determines that an equal division is not equitable.” NC...

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A (Very Brief) History of Women Separation and Necessaries

A (Very Brief) History of Women Separation and Necessaries

A (Very Brief) History of Women Separation and Necessaries  By Amy A. Edwards Did you ever wonder why “they might come after me” if the bill collector can’t find your ex? It is because North Carolina uses the doctrine of necessaries. When you hear about a duty of support, you think of alimony but that applies only between spouses. But when a third-party, such as a doctor or hospital, provides necessary services to a spouse, that third-party has the right to seek payment from the other spouse in certain circumstances, based on the doctrine of necessaries. This arises in both services (medical and non-medical) and goods but necessaries are frequently disputed in the context of medical care. Those services are usually expensive enough to merit the time and cost of litigating them in court. The general rule is that a third-party who provides medical services that were necessary for health and well-being of the husband or wife may seek payment from the other spouse. [FN1] The Exception to the Rule: Separation and Notice North Carolina recognizes a quirky exception to the general rule. If you and your spouse are separated when he or she receives the medical care and the provider has actual notice that you are separated, you have a defense. [FN1] In other words, current law says that just being separated isn’t legally adequate to get you off the hook for your spouse’s medical bill. The third-party provider must be put on notice that you are separated. As you might imagine, most people won’t go to the hospital and elect to mention that their spouse shouldn’t be liable for payment of the bill. People can avoid being at the mercy of the law by making their own agreement. Usually, separation agreements address this by agreeing the person who receives care must reimburse the other spouse if he or she is forced to pay it. Early Law: Wife’s Expenses The colonies brought with them British law, which at the time said that unless the wife left her husband for an unjustified reason, he was responsible for her necessary expenses, i.e., her necessaries. Technically, if a husband failed to provide for her, a wife was legally entitled to obtain what was necessary, at which time he would owe the provider of goods or services on her behalf. This assumes she was in a position to enforce those rights. But unlike a single woman,...

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How Are Marital Assets Valued in Court?

How Are Marital Assets Valued in Court?

How Are Marital Assets Valued in Court? By Amy A. Edwards In equitable distribution marital property cases, the court has a legal duty to identify assets and classify them as marital, separate, divisible or mixed assets (part marital and part separate). Parties are always free to stipulate or agree that assets have certain values, but if they cannot, the judge must make the decision on what each asset is worth. What Does the Law Say About Value? For marital property purposes, the value of a marital assets is fair market value, “the price which a willing buyer would pay to purchase the asset on the open market from a willing seller, with neither party being under any compulsion to complete the transaction.”[1]  The court must use the net value of marital property, meaning the fair market value minus the outstanding debt at the time the parties separate. [2] If the court finds that a property is worth the same thing as the outstanding debt, the value is zero. Courts also assign negative values to assets worth less than the outstanding debt. New vehicles often fall into this category when the down payment is not substantial. Valuing Marital Assets is Mandatory Only if an asset, or part of an asset, is marital does the court then have to make a ruling on the value of it. It sounds like common sense but if neither of the parties presents evidence to the court of the value, the court cannot just make up a value. In one case[3], a couple owned a gas station, and the business was in the husband’s name. Although the wife proved that the business was established after marriage and before the separation, she failed to offer any credible evidence on the value of the business. The court must value an asset in order for it to become a marital asset. Therefore, the court had no choice but to award the business as his separate property.  Property Appraisers The most obvious way to prove the value of an asset is by an appraiser who has special skill and experience with the asset at hand. People frequently have appraisals performed for jewelry, real estate and antiques. Often, the appraiser is hired by one or both of the parties to prepare a report for the court, to be used during the trial. Appraisers value marital property and the increases in value of separate property when the non-owner says there...

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Checklist for Hiring a Family Law Attorney

Checklist for Hiring a Family Law Attorney

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