Articles in the Family Law category - Page 8 of 14

Before 1981, military pensions were not subject to division by state courts in marital dissolution proceedings. However, Congress enacted the Uniformed Services Former Spouses Protection Act (USFSPA) to provide that, for pay periods after July 25, 1981, “disposable retired pay” of military personal is subject to division by a state court in a divorce proceeding. 10 USC 1408(c)(1). Effective December 23, 2016, Congress has changed the definition of “disposable retired pay” as it relates to property distribution upon divorce in a way that has left family law practitioners and judges across the country struggling to quickly determine how to reconcile existing state law with the new federal definition. In this blog post, I will try to explain the change as it relates to North Carolina equitable distribution law. In my next post, I will discuss some issues and questions arising from the change.

READ POST "Equitable Distribution: Change in Federal Law Regarding Military Pensions Part 1 (March 3, 2017)"

Many appellate opinions explain that judges are vested with wide discretion in matters concerning child custody. G.S. 50-13.2(a) gives the court broad authority to allocate physical and legal custody of a child as the court believes will “best promote the interest and welfare of the child” and GS 50-13.2(b) allows the court to include in any custody order “such terms, including visitation, as will best promote the interest and welfare of the child”. Recently, however, the North Carolina Court of Appeals made it clear that there are limits on the court’s authority in custody cases. In Kanellos v. Kanellos, 795 S.E.2d 225 (N.C. App., 2016), the court reminded us that custody cases are primarily about determining who has physical care and control of a child and who has decision-making authority regarding a child and not as much about controlling the details of the lives of the child or the parties.

It is increasingly common that domestic relations cases in North Carolina involve defendants who reside outside of the United States. In child custody cases, especially cases that include a request for findings related to Special Immigrant Juvenile Status, it is increasingly common for plaintiff to allege that although she knows defendant lives in another country, she has been unable to find the actual location of defendant in that foreign country. Rule 4(j2) of the Rules of Civil Procedure allows service by publication when after using appropriate due diligence to locate a defendant, plaintiff is unable to find an address to use for personal service. Notice of service must be published in the area where plaintiff believes defendant to be located. If there is no “reliable information” as to defendant’s location, notice can be published in the area where the action is pending.

Does this same rule apply when defendant is known to be in another country?

G.S. Chapter 35A authorizes the clerk of court to appoint a general guardian or guardian of the person for a child who has no natural guardian. A biological or adoptive parent is a natural guardian of a child, so these guardianships are an option only for children whose parents are both deceased or parental rights have been terminated (either both parents’ rights have been terminated, or one parent is deceased and the other parent’s rights have been terminated). See G.S. 35A-1224(a). However, orphaned children also are often the subject of Chapter 50 custody actions. What happens if a child is the subject of both proceedings? Can both move forward or does one preclude or take priority over the other? In Corbett v. Lynch, (Dec. 20, 2016), the North Carolina Court of Appeals held that the appointment of a general guardian or guardian of the person renders pending issues of Chapter 50 custody moot. In supporting its holding, the court indicates that a Chapter 35A guardianship creates a relationship between the child and the guardian that is more comprehensive than a relationship between a child and a custodian designated pursuant to Chapter 50.

READ POST "Chapter 35A Guardianship Trumps Chapter 50 Custody (February 1, 2017)"

Spouses in North Carolina are free to contract with each other before, during and after marriage. The Uniform Premarital Agreement Act regulates contracts entered in anticipation of marriage, see GS Chapter 52B; GS 52-10 and GS 50-20(d) provide statutory authorization for contracts entered during marriage, and GS 52-10.1 is the statutory authorization for agreements made in consideration of living separate and apart. Married people generally are free to enter into any contract “not inconsistent with public policy.” GS 52-10(a).

What about agreements made during separation when the parties intend to resume the marital relationship rather than to end it, setting out what will happen should the parties separate again in the future? Are such ‘reconciliation agreements’ consistent with public policy?

I received a call once from a clerk of court asking what she should do with a voluminous court file received in the mail from a court in another state. It was a large box containing all of the pleadings, motions, reports and other filings for a custody case that had been litigated in another state for several years, accompanied by a court order signed by a judge in that other state “transferring venue” of the case to North Carolina, citing as authority that state’s version of the Uniform Child Custody and Jurisdiction Act (the “UCCJEA”).

Does the UCCJEA allow a judge to transfer a custody case to another state? When that clerk received the file and the order from the other state, is the North Carolina court required to act in the custody proceeding?

READ POST "Child Custody: We Can’t “Change Venue” to Another State (October 28, 2016)"

A few weeks ago, I posted about the case of Zetino-Cruz v. Benitz-Zetino, NC App (August 16, 2016), in which the court of appeals held that the trial court erred in transferring venue sua sponte in a custody case. The opinion also mentions that, in addition to her request for custody, grandmother in that case also requested that the trial court make findings of fact and conclusions of law that are prerequisites for the children’s application to US Citizenship and Immigration Services (USCIS) for Special Immigrant Juvenile Status. The court of appeals resolved the case on the venue issue alone and did not address the request for the “extra” findings of fact or conclusions of law by grandmother.

This same request is being made in custody cases throughout the state with increasing frequency. So what is Special Immigrant Juvenile Status and what does it have to do with Chapter 50 custody cases?

My post last week discussed the decision in Mannise v. Harrell that told us a Chapter 50B proceeding is an in personam proceeding that requires all three prongs of personal jurisdiction. That case also reminded us that a plaintiff has the burden of producing evidence, “direct or indirect,” to establish prima facie that personal jurisdiction exists when a defendant properly objects to personal jurisdiction. As illustrated in Mannise, many plaintiffs in 50B proceedings are not prepared to meet this burden.

READ POST "Domestic Violence: more on Mannise and personal jurisdiction (September 16, 2016)"

Nunc pro tunc is a phrase used in an order or judgment when the court wants the order or judgment to be effective as of a date in the past rather than on the date the judgment or order is entered into the court record. Black’s Law Dictionary defines the term “nunc pro tunc” to mean “now for then; [a term signifying] ‘a thing is now done which should have been done on the specified date.’” Recent cases from the North Carolina Court of Appeals have made it clear that nunc pro tunc is a tool available only in extremely limited circumstances.

It is not always clear when a court can exercise authority sua sponte, or to put it in English, on its own motion, without a party specifically requesting that the court act.  Last week, the court of appeals held that a trial court does not have the authority to change venue sua sponte. Unless a defendant files a timely motion requesting a change and establishes grounds for moving the case to another county, a plaintiff has the right to prosecute a civil case in the county of his or her own choosing.

READ POST "No Sua Sponte Change of Venue Allowed (August 26, 2016)"