Articles in the Family Law category - Page 12 of 14

All custody orders in cases between parents must allocate custody rights and responsibilities in a way that meets the best interest of the child. GS 50-13.2. “Custody” is a term […]

*****Since this article was posted, the NC General Assembly amended the statute governing the division and distribution of retirement benefits and made a significant change regarding the topic of this […]

An equitable distribution judgment was entered 11 years ago. The order states plaintiff is entitled to a percentage of defendant’s retirement pay when defendant begins to receive it. The judgment also states that plaintiff’s counsel will draft a QDRO. Now it is time for defendant to retire but no one ever drafted a QDRO. Is there a problem? Can the court enter one now?

In my last post, Ex Parte DVPOs, I promised more on ex parte DVPOs. But the Court of Appeals issued an important decision this week on another aspect of Chapter 50B – the definition of ‘dating relationship’ – so I’ll come back to ex parte orders later.

The North Carolina Court of Appeals has had quite a bit to say about ex parte DVPOs in the past few years. Repeatedly recognizing that while “an ex parte DVPO may be short-lived, … it has a potentially long-lasting and serious impact on a defendant, whether or not a DVPO is later issued,” Stancil v. Stancil, NC App (June 16, 2015), the court consistently has interpreted GS 50B-2 strictly.

For a reason never articulated by our appellate courts, debts incurred during a marriage are treated very differently in equitable distribution than is property. While public policy – codified as the marital property presumption found in GS 50-20(b) – is to include all property acquired during the marriage in the marital estate unless it is shown to fit within one of the limited categories of separate property, debt incurred during the marriage is excluded from the marital estate unless a party can prove the debt was incurred for the joint benefit of the parties.

READ POST "Equitable Distribution: Classification of Marital Debt (June 19, 2015)"

Custody orders can be modified only when there has been a substantial change in circumstances affecting the welfare of the child. So what can be done when there is a change that is not actually substantial or that has little or no impact on the welfare of the child but which makes the existing parenting plan inconvenient or more expensive for the parents? For example, the work schedule of one parent changes in a way that makes the existing plan very inconvenient or significantly increases that parent’s childcare costs? Or, a child starts playing a new sport where the games are scheduled during the time child is supposed to visit the parent living in another state? Is there any room in the law for allowing minor “tweaks” to custody orders to accommodate normal life changes?

READ POST "“Tweaking” of Custody Orders Not Allowed (June 12, 2015)"

G.S. 50-13.5 allows a court to enter a temporary custody order whenever the court deems it appropriate. The ability to enter a temporary order gives the court the power to address immediate needs of families going through the litigation process. There is no limit on the number of temporary orders that can be entered in a case and temporary orders can be changed at any time, by any judge, for any reason.

GS 50-8 requires verification for a complaint requesting a divorce. What can be done if the divorce complaint is filed without a verification or if the verification is faulty in some way? Must the complaint be dismissed and a new action instituted – requiring another payment of the substantial filing fee?

READ POST "Can a verification problem be corrected after a divorce complaint is filed? (May 29, 2015)"

Is a consent custody order void if it is entered in a case between a nonparent and a parent and the consent order does not include the conclusion that the parent has waived his or her constitutional right to exclusive, care, custody and control of the child?

READ POST "Nonparent vs Parent Consent Custody Orders (May 22, 2015)"