Articles in the Family Law category - Page 10 of 14

Last September, I began a blog post with the following statement; “Beware. A child support or alimony order should never contain the word “capacity” or the words “ability to earn” unless it also contains the words ‘bad faith.’” Imputing Income: Voluntary Unemployment is Not Enough. On April 5, 2016, the court of appeals once again reminded us that this overly dramatic generalization of the law frequently proves true. Lasecki v. Lasecki is a great opinion to read for a review of the law relating to establishing and enforcing child support when parents have an unincorporated separation agreement and it is yet another statement by the court that we should never consider a parent’s capacity to earn at any stage of a child support proceeding unless we first determine that the parent is intentionally depressing income in deliberate disregard of a support obligation.

READ POST "And They Said It Again: Never Use Earning Capacity Without Bad Faith (April 22, 2016)"

Unlike other civil judgments, custody and support orders can be modified when there has been a substantial change in circumstances since the order was entered. This rule is codified in North Carolina at GS 50-13.7 and every state in the country has a similar statute.

While this authority is broad and straight forward, there are other statutory provisions that place significant limits on a court’s subject matter jurisdiction to modify a custody or support order – whether the order originally was entered in NC or in some other state or country. These statutory provisions were enacted for the purpose of discouraging parents from running from state to state in the hope of obtaining a more favorable court order.

READ POST "Child Custody and Support: Jurisdiction to Modify (April 15, 2016)"

***UPDATE TO POST MAY 2, 2016: On April 26, 2016, the NC Supreme Court granted a temporary stay of the Court of Appeals ruling in the case discussed in this post. See SC docket #152P16-1.

***UPDATE TO POST OCTOBER 2, 2017: On September 29, 2017, the NC Supreme Court reversed the opinion of the Court of Appeals discussed in this post. See Catawba County ex rel. Rackley v. Loggins.

On Tuesday this week, the court of appeals held that a consent order modifying an existing child support order was void because no motion to modify was filed before the consent modification was entered by the court. In Catawba County ex. rel. Rackley v. Loggins, (NC App, April 5, 2016), the court held that GS 50-13.7 clearly requires that a motion in the cause requesting modification be filed in order to invoke the subject matter jurisdiction of the court to enter any further orders in the support case. Without the motion, the court has no subject matter jurisdiction to act.

Unfortunately, it is not uncommon in North Carolina for orders to be entered modifying existing custody and support orders without anyone actually filing a motion to modify. This practice is especially common when all parties in the case agree to the modification. The court of appeals now has made it clear that this practice of ignoring required procedure results in invalid, unenforceable orders.

READ POST "Hope Someone Remembered to File the Motion to Modify…….. (April 8, 2016)"

Prospective child support is the support ordered to be paid for the support of the child in the future. However, the court of appeals has held that all orders for prospective support must be effective as of the date the complaint seeking support was filed unless the trial court makes specific finding of fact to support ‘deviating’ from the general rule. Ex. rel. Miller v. Hinton, 147 NC App 700 (2001). This means that prospective support generally includes amounts ordered for a period of time before the support order is entered, but only that time period between the date of the filing of the complaint and the time of the entry of the child support order. And of course, GS 50-13.4 provides that the amount of prospective support generally is determined by application of the child support guidelines.

But what about orders for support for a period of time before a complaint or motion for support is filed?

READ POST "Retroactive Child Support: What is it and how is the amount determined? (April 1, 2016)"

In a recent blog post, I wrote about newly enacted legislation stating it is the public policy of North Carolina that custody determinations made pursuant to Chapter 50 of the General Statutes should encourage and supports a child’s relationship with both parents. Kids Need Both Parents When Possible. But in a decision published this week, the court of appeals upheld a trial court order limiting a father to supervised visits with his children every other Sunday for two hours. Meadows v. Meadows, NC App (March 15, 2016).

Such limited access certainly doesn’t sound like the type of ‘equitable’ sharing of parenting rights and responsibilities encouraged by the new legislation.

So when is it appropriate for a court to limit a parent’s access to his child in such an extreme way?

READ POST "Child Custody: Denying or Significantly Limiting a Parent’s Visitation (March 18, 2016)"

Given the ever-increasing number of family law cases in the district courts, it is not surprising that questions frequently arise concerning the court’s authority to place limitations on the amount of court time allowed to individual cases. My former colleague Michael Crowell wrote a bulletin titled Time Limits several years ago thoroughly discussing the law addressing this question. Below are excerpts from his article. The entire bulletin can be found at https://www.sog.unc.edu/sites/www.sog.unc.edu/files/reports/aojb0902 pdf.

In the recent case of Nicks v. Nicks, 774 SE2d 365 (NC App 2015), husband transferred property acquired during the marriage to an LLC and the LLC thereafter was transferred to a trust. All of this occurred before the date of separation. Understandably, the trial judge in the equitable distribution action filed after the parties separated felt that the property transferred to the LLC should be classified as marital property and distributed between the spouses, so the trial court classified the LLC itself as marital property and distributed it the husband as his share of the marital estate. The court of appeals vacated the ED judgment and remanded the case to the trial court after concluding the LLC was not marital property because it was not owned by either or both spouses on the date of separation.

Does this mean a spouse can avoid ED simply by transferring ownership of property to an LLC or other third party before the date of separation, or by allowing family members or others to hold legal title to property acquired with marital funds during the marriage?

READ POST "Equitable Distribution: When Marital Property is Not Owned by a Party…… (February 17, 2016)"

The equitable distribution statutes only give trial courts the authority to distribute marital property. This means equitable distribution is all about – and only about – identifying property owned by either or both spouses on the date of separation and determining how it should be distributed between those two people.

Marital property may include ownership interests in businesses and corporations. Just as parties can own stock in a traditional C corporation, parties also can own an LLC or an interest in an LLC. And just as a court would not be required to join, for example, Exon Corporation or Google before distributing stock owned by the parties, a court is not required to join an LLC in an ED case if the court simply distributes the marital ownership interest in the LLC between the parties.

READ POST "Equitable Distribution: When does the marital LLC have to be joined as a party? (February 12, 2016)"

It is not uncommon to see custody orders – both orders entered by North Carolina courts and orders from other states – containing language such as “Law enforcement officers shall assist in the enforcement of this custody order,” or “Law enforcement shall pick up the minor child and deliver the child to the custodial parent.” While most judges intentionally enter such orders only when there is reason to be concerned for the safety of the children, these provisions often are included as standard provisions in custody order templates throughout North Carolina and are extremely common in form orders used in other states.

Must a law enforcement officer comply with such a provision in an order from another state? Does a North Carolina judge have the authority to order law enforcement involvement? Case law and statutes indicate that authority for law enforcement involvement is limited.

READ POST "Ordering Law Enforcement Officers to Enforce a Child Custody Order (January 15, 2016)"

Long ago and far away, title and control of all of a woman’s property vested in her husband upon marriage. In exchange, the husband became responsible for support of the wife for the remainder of her life. The support obligation continued even through divorce, unless the bad conduct of the wife was the reason for the divorce.

This is the common law foundation linking misconduct –fault – to alimony. Over time, the law came to require that any woman seeking alimony first prove that her husband’s conduct rather than her own was the cause of the marital breakup.