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Family4-200x200Spousal privilege is the legal and policy doctrine that accords confidentiality between spouses with an aim to encourage martial harmony and to protect families. There are two types of spousal privilege: (1) testimonial privilege and (2) communications privilege. Each privilege applies in finite circumstances and requires an inquiry into the status of the marriage.

Testimonial Privilege

Testimonial privilege is asserted in criminal cases. In this scenario, one spouse is called to testify against another spouse in a criminal proceeding. The spouse who is being called to the stand can assert testimonial privilege and refuse to testify against the defendant spouse. At the same time, this privilege is not absolute. The witness spouse may choose to waive his or her privilege and testify anyway. This can occur even under the objection of the defendant spouse.  In different jurisdictions, there are exceptions to testimonial privilege including in the case of marital rape. For the testimonial privilege to apply, the defendant spouse and the witness spouse must be married at the time the privilege is asserted.

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Div12-200x200At first blush, the North Carolina law requiring a one-year separation period before a court can grant divorce has some saving qualities. One might view the law as creating the space and time for couples to reconsider divorce, which is especially important when children are involved. However, for certain individuals, the one-year waiting period is quite a burden.

One-Year Waiting Period May be Incompatible for Certain Marriages

A 33-year-old woman living in North Carolina separated from her husband and was able to provide solid evidence to a court to warrant a restraining order. Included in her evidence were photos of injuries she claims she sustained from the abuse of her husband. Even with a documented history of abuse and a restraining order, the woman must wait one year before seeking a divorce. During the interim, she had to pay her  husband’s health insurance. She also had to endure the psychological distress of knowing that the person who allegedly abused her was legally recognized as her husband. Possible abuse victims like this woman fear for their safety when the state requires prolonging a legal relationship, which brings them pain and suffering. The issue with the one-year waiting period is not limited to psychological pain. Like the woman’s payment of her estranged spouse’s health insurance, sustained legal recognition of the marriage carries certain obligations and requirements abuse victims should not have to maintain. In one respect, the obligation may prove unethical and dangerous.

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Annulment-200x200Annulment is the legal procedure that declares a marriage void from its inception. The marriage is deemed as illegal when it was pronounced, therefore, the effect of an annulment is retroactive invalidity. Annulment is granted on varying grounds depending on the state at issue including insanity, bigamy and incest.

Voidable vs. Void Marriages

Under North Carolina law, a marriage is that void is subject to annulment. In the alternative, a marriage that is voidable is a marriage that is entered into with a major defect including: (1) incest, (2) false pretenses, (3) impotence, (4) lack of sound mind, and (5) one of the spouses being under the age of sixteen. All of these instances are grounds that the court will consider as voidable. Unlike void marriages, a court can deem a voidable marriage as valid depending on the circumstances of the case. For example, in the case of false pretenses, if you remain married after you discover that your spouse was never pregnant (as was communicated before the marriage), then a court can find validity under the rationale that the pregnancy was not the actual reason for seeking the annulment.

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DomesticViol2-200x200In North Carolina, a domestic violence protective order (DPVO) is a civil relief that is filed in district court. It permits the court to order an alleged abuser to do or refrain from doing certain acts as it relates to the plaintiff. Obtaining a DPVO requires the plaintiff to show that domestic abuse is being committed. In addition, the plaintiff must show a present or past personal relationship between themselves and the alleged abuser (among other requirements). The process for obtaining a DVPO has been streamlined for average citizens to take advantage of it to protect themselves.

How to Obtain a DVPO

A plaintiff must go to their district court to file DVPO forms. If the plaintiff requires filing outside of business hours, they may go to a magistrate. If the plaintiff requires an emergency filing, then the DVPO may advance as an ex parte filing. The ex parte filing will apply for a temporary order, and will not require the presence of the alleged abuser when the temporary order is issued. The DVPO also provides for temporary custody by the plaintiff if there are children involved. In addition, the alleged abuser must surrender all firearms. There are no fees associated with filing a DVPO in North Carolina. After filing for the DVPO, the plaintiff must take the forms to the sheriff’s department. In turn, the sheriff’s department will serve the defendant with the complaint and a summons to appear in court. Thereafter, a hearing is scheduled on the merits of the case where the plaintiff must show evidence that the alleged abusive acts were actually committed.

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Div11-200x200In the United States, divorcing parties, depending on their state of residence, are subject to equitable distribution or community property rules as it relates to the division of their property. Most states adhere to equitable distribution standards while a minority of states observes community property rules.

Community Property States


Community property encompasses assets that were acquired during the marriage, but excluding gifts and inheritances. Community property does not consider the named owner on the title of the property. It only takes into consideration that the property was acquired during the marriage thus included in the “marital community.” A minority of states adheres to community property rules during divorce proceedings including Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, Arizona, California and Alaska (by agreement).

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Prenup-200x200What is a Prenuptial Agreement?

A prenuptial agreement is a premarital agreement that is entered into before marriage and sets out the terms of separation. Prenuptial agreements are usually enforceable unless the agreement was entered into under duress, fraud or the agreement sets out unreasonable grounds thus rendering it void as a matter of public policy. Prenuptial agreements are usually signed after the couple enters into an engagement and before the marriage ceremony. Individuals who want prenuptial agreements are usually wealthy individuals, individuals who have been married before or people of advanced age. As mentioned, prenuptial agreements can include any terms over which the couple wants to contract over unless it is illegal. Couples frequently contract over asset and debt distribution, liabilities and child rearing. Some agreements include unusual, but legal terms, surrounding monetary penalties after infidelity as well as who retains custody of a pet during separation. Although couples can choose to contract over a wide range of topics, there are standard requirements contracting parties must follow that will result in an enforceable contract.

What Constitutes a Valid Prenuptial Agreement?

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Divorce8-200x200North Carolina Permits Fault and No-Fault Divorce


When it comes to grounds for divorce, North Carolina is a hybrid state. It permits filings for both fault and no-fault divorce actions. It is important that divorcing parties are aware that North Carolina is a no-fault state as no-fault normally provides individuals with a speedy and egalitarian divorce proceeding. A contentious marriage or parties who have viable legal grievances against one another may not agree to a no-fault divorce proceeding. Therefore, knowing the differences between the two grounds of divorce is valuable to all parties involved. Under North Carolina law, the two broad bases for fault divorce are marital misconduct (i.e., adultery) or incurable insanity.  The complete definitions of both broad grounds are defined via legal precedent and legislative interpretation. In the alternative, no-fault divorce is clearly stated under statute. Under the no-fault divorce statute, both parties must have resided in North Carolina for six months or more. The parties must also live separate and apart for one year.

One Year of Separation

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DivorcePaper-200x200A separation agreement is usually the first legal instrument a divorcing couple will agree upon. Although the parties are still legally married, the separation agreement mandates and directs the affairs of the parties while they are living separately. The agreement is crucial as it can set the tone for the final agreement that is incorporated into the divorce decree. Parties should be hard-pressed to agree to terms that are the most fair to their wants and needs. There are a few important terms that are seldom discussed when one thinks of a separation agreement. These terms can also be some of the most contentious during divorce proceedings. It can also make for a speedy proceeding if the parties are able to decide on them during the separation phase.

Living Arrangements


During a marriage, most couples will purchase a house together and share joint ownership. A house may be the largest and most expensive asset a couple may own. During separation, one spouse usually has to leave the marital home. If the parties are financially stable, they can agree to keep the home and one party can obtain a separate dwelling place. Some parties may agree to sell the home and share the profits. If both parties have practical, emotional or financial attachments to the home, the may both decide to remain in the home for the duration of the divorce proceeding. In this instance, the parties would be wise to include terms regarding the rules of cohabitation during separation.

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Mediation3-200x200What is Mediation?


Mediation is an out-of-court alternative dispute resolution method that takes the place of tradition in-court proceedings. Mediation focuses on collaboration and discovering common ground within a dispute. Generally, mediation is a voluntary process; however, some states mandate mediation as a starting point for certain disputes. Even though mediation is generally a voluntary process, the agreement that is drawn as a result of the mediation is binding on all parties involved. Mediation has grown to become a workable dispute resolution process for separating and divorcing parties.

The goal of mediation is to create the best possible outcome utilizing fairness and strategies that will facilitate harmony in long-term relationships. Parties who engage in the mediation process will find that it is less adversarial and more equitable. Further, parties are able to reach their settlement goals more readily when they opt for mediation.

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LadyJusticeRings-200x200Common Law Marriages

A common law marriage is a legally recognized marriage that is permitted in certain jurisdictions and does not require a license or a ceremony. In these marriages, the state will recognize when two people live together as spouses and hold themselves out as a married couple. North Carolina does not recognize common law marriage arising in the state. However, a few states, including Iowa, South Carolina, and Colorado, and Texas do recognize common law marriages. For example, to have a valid common law marriage in Texas, the two individuals have to (1) agree to be married, (2) live together as husband and wife, (3) and show others that the marriage exists (i.e., hold themselves out as married).  In Alabama, each person must show an intention to be married and there must consummation. In a recent development, Alabama has abolished common marriages arising after January 1, 2017.

Although a common misconception, a couple need not enter the common law marriage for a specific time frame to gain recognition for common law marriage. They must only fulfill the qualitative requirements under the state statute.

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