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Articles Tagged with Charlotte Family Law Attorney

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Show Cause Contempt of CourtFailure to pay child support in North Carolina may result in a Show Cause Order and Civil Contempt proceedings.

Once entered, the Burden of Proof shifts, requiring the defendant/respondent to show why he or she should not be held in civil contempt of court.

Family law attorneys may refer to that person as the “contemnor.”

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LGBT_Marriage-200x200The applicability of federal law in a country where each state is its own sovereign can cause some complexity for issues such as same-sex marriage. Marriage is under the ambit of state law, however, where the federal law interprets state law as a violation of constitutional rights, states must yield to the federal interpretation of the law. Same-sex couples seeking to marry have to gain a clear understanding of the marriage laws governing their jurisdiction. North Carolina is an example of a state where some complexity exists.

Same-Sex Marriage Under Federal Law

To fully understand state law, individuals must understand its relationship to the federal law. On June 26, 2015, same-sex marriage was pronounced as legal nationwide in the landmark case of Obergefell v. Hodges. In that case, the Supreme Court of the United States held that same-sex marriage was a guarantee under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment of the Constitution. With this ruling, same-sex marriages were recognized in all 50 states and Washington D.C. As of today, about seven counties in Texas and Alabama do not issue marriage licenses to same-sex couples.

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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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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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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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Prenup5-200x200The idea of executing a prenuptial agreement, also known as a premarital agreement, can be scary for any couple on the road toward marriage. But in all reality, prenuptial agreements are an increasingly common situation for couples to face. Moreover, couples can decrease the potential friction associated with a prenuptial agreement through an understanding of several important considerations.

Create a Prenuptial Agreements In Writing

As outlined in in Chapter 52B of the North Carolina General Statutes, prenuptial agreements must be made in writing and signed by both spouses. Without a valid writing signed by both parties, the prenuptial agreement becomes invalid and unenforceable.

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DivWordsThe North Carolina Department of Health and Human Services (DHHS) publishes a report each year detailing the number of marriages and divorces. The topic for exploration today is an analysis of DHHS data on the number of North Carolina marriages and divorces over the past five years.

It is crucial to note that 2017 is not yet available. As a result, the five-year period for analysis will be 2011 to 2016. The following sections will offer a statistical breakdown of DHHS data for the statewide resident population, total divorces, divorce rate, total marriages and marriage rate.

North Carolina Resident Population

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FamLaw2-200x200Back in 1996, North Carolina engaged in a redesign of the in-state legal system. At the conclusion of this process, the Commission for the Future of Justice and the Courts in North Carolina issued a report, titled “Without Favor, Denial or Delay,” outlining a number of recommendations to overhaul the state legal system.

Among those recommendations, the Commission called for the creation of a unified court system for family law that reached across North Carolina. Before North Carolina established a statewide, unified system for family court, domestic claims were rarely heard in the same courtroom.

The spouses would file for divorce and divide up marital property before one judge. Then another judge could hear the child custody case. A third judge might end up presiding over any claims for child support. In cases of domestic violence, there was likely a fourth judge involved.

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Division-200x200Our topic for discussion today involves the North Carolina approach to equitable distribution. In simple terms, equitable distribution refers to process of the court dividing up marital property between the spouses during divorce proceedings. It is important to note that equitable distribution only occurs when the spouses cannot agree amongst themselves to a fair distribution of their property.

How Does North Carolina Define Equitable Distribution?

In Section 50-20 of the North Carolina General Statutes, we can find the state-specific definition for equitable distribution. Essentially, North Carolina allows either party to a divorce to ask the court to determine a fair division of spousal property. At that point, the court will examine both the marital property of the spouses. Then the court will determine a fair division of that property between the spouses. For reasons we will discuss below, the court will not divide the separate property of the spouses.

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