Articles in the Family Law category - Page 13 of 14

S.L. 2013-103 amended the marital property presumption found in G.S. 50-20(b)(1) to specifically include entirety property. As of October 1, 2013, the statute provides:

It is presumed that all property acquired after the date of marriage and before the date of separation is marital except property which is separate property under subdivision (2) of this subsection. It is presumed that all real property creating a tenancy by the entirety acquired after the date of marriage and before the date of separation is marital property. Either presumption may be rebutted by the greater weight of the evidence.

READ POST "Tenancy by the Entirety in Equitable Distribution: Did the statutory amendment change anything? (May 15, 2015)"

In my last post, No Default Judgment in Contempt, I wrote about the requirement that all contempt orders contain the conclusion that respondent acted willfully when committing the act that is the basis for contempt. Of course, that conclusion must be supported by findings of fact, which in turn must be based on evidence.

So what findings are sufficient to support the required conclusion when contempt is based on the failure to pay money, such as child support?

READ POST "Contempt: Establishing Ability to Pay (May 8, 2015)"

By Guest Contributor, John Rubin*

Can the person protected by a DVPO be charged with violating the order?

Here’s a question I get occasionally: What language should I use to charge aiding and abetting a violation of a domestic violence protective order (DVPO)? Here’s a similar one: If someone is arrested for aiding and abetting a violation of a DVPO, is the person subject to the 48-hour pretrial release law for domestic violence offenses?

READ POST "Please Don’t Charge the Victim (May 6, 2015)"

Even when contempt is based upon the failure to pay child support, the contempt order must contain the conclusion of law that respondent willfully violated the court order. That conclusion must be supported by findings of fact showing respondent actually has/had the ability to comply or to take reasonable steps to comply and deliberately failed to do so. Those findings of fact must be based on evidence.

In other words, a contempt order cannot be entered by default – a court cannot assume a respondent has the ability to comply simply because the respondent fails to prove he/she does not have the ability to comply.

*Note, since this post was published, North Carolina laws on statutory construction were amended. Effective July 12, 2017, the terms “husband and wife” and other terms suggesting a lawful marriage must be construed to include any two individuals who are then lawfully married to each other. See S.L. 2017-102, sec. 35 creating G.S. 12-3(16). This impacts the analysis of G.S. 49A-1, where it does apply to a mother and her spouse. For a further discussion, see New Legislation Acknowledges Same-Sex Marriage, posted by our colleague Cheryl Howell on Aug. 8, 2017.

Since our blog post, Same-Sex Marriage and Adoptions of a Minor by a Stepparent, we have received several inquiries about the role of a sperm donor in an adoption proceeding. Although General Synod of the United Church of Christ v. Resinger, 12 F. Supp. 3d 790 (W.D.N.C. 2014) and Fisher-Borne v. Smith, 14 F.Supp. 3d 695 (M.D.N.C. 2014) held NC’s ban on same-sex marriage is unconstitutional, they did not specifically address parentage when a child is conceived or born during a same-sex marriage. And, although artificial reproductive technology has advanced in the last 20 years, the laws in NC have not fully addressed these advances and how they impact parentage.

Almost every equitable distribution case involves marital debt. And because there often is a significant amount of time between the date of separation – the point in time when the marital estate is created and valued – and the date the marital estate actually is distributed, most every case also involves post-separation changes in the amount owed on that marital debt. The amount either increases because neither party pays the bills and interest and finance charges accrue, or the amount decreases because one of the parties make payments. North Carolina law has struggled to determine the best way to address these changes in the distribution process.

READ POST "Equitable Distribution: Post-Separation Changes in Debt (April 17, 2015)"

Chapter 50B expressly authorizes entry of consent DVPOs, GS 50B-1(c), and many cases are resolved in this way. Overall, this is a good thing because consent orders:

• Spare both parties, who often are appearing pro se, the stress and uncertainty of a trial;
• Allow the parties to create orders that will best meet their specific needs; and
• Conserve valuable court time.

It is not uncommon for a defendant to be willing to agree to the entry of an order but not willing to agree that the specific acts alleged in the complaint actually occurred.  Can a DVPO be entered without the specifics?

The district court has exclusive, original jurisdiction over all abuse, neglect, and dependency (A/N/D) proceedings. When a court obtains that jurisdiction after an A/N/D petition has been filed by a county department of social services (DSS), “any other civil action in this State in which the custody of the juvenile is an issue is automatically stayed as to that issue, unless the juvenile proceeding and the civil custody action or claim are consolidated … or the court in the juvenile proceeding enters an order dissolving the stay.” G.S. 7B-200(c)(1).

What does this mean?

Juveniles, like adults, may be held in contempt for disrespecting the court or interfering with the proper administration of justice. Consider the actions of the juveniles in the following cases: (1) Evan, age 14, was adjudicated delinquent for simple possession of marijuana. At the disposition hearing, the judge asked Evan, “Where do you get your marijuana?” and he refused to answer. Although the judge repeated this question several times, he still refused to answer. (2) Kim, age 15, was adjudicated as an undisciplined juvenile for habitual, unlawful absences from school. The terms of her protective supervision order required her to attend school every day, but she has repeatedly skipped school, since the disposition hearing. May either juvenile be held in contempt? The short answer is yes.

The equitable distribution statute contains specific requirements for the classification and distribution of “pension, retirement or other deferred compensation benefits.” GS 50-20.1. Because these retirement accounts frequently are the most valuable asset in an equitable distribution case, it is significant that the court of appeals held in Watkins v. Watkins, 746 S.E.2d 394 (N.C. App. 2013), that a 401K, one of the most common retirement accounts today, generally is not “deferred compensation” and therefore does not fall within the restrictions of GS 50-20.1.

READ POST "When is a 401k Not a Retirement Account? (March 20, 2015)"