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FAMILY LAW (NC

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Before marriage: premarital agreements 1. Governing law: uniform premarital agreement act and NC general statutes chapter 52B 2. Formalities: in writing and signed by both; for RE acknowledged 3. Contents: alimony and equitable distribution can be waived; rights to child support may not be waived 4. Process: voluntariness required; 2 lawyers not required; disclosure required b/c of fiduciary relationship but can be waived; access to info eliminated need for disclosure; Getting married: requirements 1. License: can obtain anywhere in state, not just county of marriage 2. Ceremony: required (no common law marriage in NC); elements: consent, in presence of each other, by ordained minister or magistrate 3. Substantive requirements: capacity, age (>14), kinship, gender 4. Important concept: a marriage valid where contracted is valid everywhere (unless the marriage violates a strongly held public policy – e.g. against same-sex marriages) 5. Heart-balm actions: breach of promise to marry: will not lie if license could not have been issued when promises were exchanged; no illegal consideration; DURING MARRIAGE Torts 1. Between spouses/for acts of spouse: no interspousal tort immunity; but spouses not liable for torts of the other spouse to 3rd people 2. For injury to spouse by third party: can sue for loss of consortium 3. Heart-balm actions: a) alienation of affections: marriage with genuine love and affection destroyed by wrongful (pre-separation) act of another; b) criminal conversation: tort action for damages by a spouse rd against a 3 party; must show marriage and sexual intercourse with spouse (may be before or post separation sex; strict liability); punis available in both causes where malice or aggravating circumstances; Contracts and Support 1. Post-marital contracts: in writing; must be signed and acknowledged; cannot waive right to alimony; cant violate public policy; spouse is not liable for debts of the other contracted in individual capacity; 2. Elements of action for necessaries: debtor spouse must be married to rd Δ and K must have been for necessary item for 3 party to recover; separation only a defense if creditor has actual notice of it; Surnames Wife is not req’d to use husband’s name Criminal liability; Civil liability for domestic violence 1. Criminal: fully liable, no immunity 2. Civil: for domestic violence, even if not married 3. Definition of domestic violence: bodily harm, attempts at bodily harm, fear of imminent serious bodily harm, continued harassment causing substantial emotional distress, sexual offense 4. DV applies to: current or former spouses, current or former household members, parents/children, gparents/gchildren, persons with a child in common, persons of opposite sex who are dating or have dated 5. Relief: emergency ex parte relief (up to 1yr, renewable); appeal of interlocutory ex parte order is not permitted, but hearing must follow within 10days; mandatory arrest of batterer who violates order; judge must determine pretrial release; Δ must be taken before judge as soon as reasonably feasible or it is unconstitutional Evidentiary issues: 1. Immunity from compelled testimony: criminal trial; not for family crimes (criminal cohabitation, assault of spouse, failure to support child, etc.) 2. Confidential communications privilege: priv for communications made during marriage because of trust in marital relationship; does not apply to actions for child support, abuse, neglect, and paternity cases; ENDING THE MARRIAGE Annulment 1. Presumptions: validity; validity of latest proved marriage is strong 2. Void: for bigamy; attackable at any time by anyone, cannot be ratified, immune from equitable defenses; 3. Voidable: for <16, kinship, physically impotent, misrepresentation about pregnancy; attackable only by parties whom the defect protects, except parent can annul marriage of a child under 18 if license was by fraud; if parties have kids, must bring action during their joint lifetimes; a party who knew of the defect is equitably estopped to raise defect if other party relied on marriage in good faith; 4. Rights arising out of annulled marriage: temporary alimony (postseparation support) and attorney’s fees; no permanent alimony; Divorce 1. Bed&Board Divorce: legal separation with custody, alimony, child support, etc, but parties are not free to remarry; Fault based on: abandonment, cruel treatment, indignities (abuse, humiliation), drug abuse, adultery; Defenses: recrimination, forgiveness, connivance, collusion 2. Absolute Divorce: insanity required a three year separation and medical proof; only other way to get divorce is through one year separation, req’d: valid marriage, residency (domicile) by either spouse 6 months prior to filing, physical separation for at least 1 year before filing, and intent on part of one not to resume marital relationship; this is a no fault divorce; 3. Effects of divorce: ends all rights from the marriage that are not pending at time of divorce, except for K rights (beneficiary on life ins); in rem action 4. Foreign divorce: FF&C to out-of-state divorce if valid jurisdiction (spouse was domiciled there); the home of the left behind spouse can reexamine the validity of domicile; foreign quickie divorces are void in NC; 5. Foreign divorce and Property rights: divorce based on personal jurisdiction over only one spouse is valid, but the effect on property division will depend on the law of that spouse’s domicile; NC can exercise long-arm jrdx (Int Shoe standard) over absent spouse; Other state may effect property division if has personal jrdx over NC spouse, if no personal jrdx, NC resident must file within six month of the foreign divorce decree; child support rights are unaffected by local or foreign divorces; ECONOMICS OF DIVORCE Post-separation support 1. Procedure: judge only hearing; filed in action for divorce, alimony, divorce from b&b, or annulment; may be heard on verified pleadings or affidavits; 2. Requirements: i) supporting and dependent spouse, whose resources are inadequate; ii) equitable, considering all factors (incl marital misconduct); 3. Amount and duration: to address shortfall between expenses and income of dependent spouse to the extent the supporting spouse has ability to address it; lasts until a specified date or until alimony granted/denied; 4. Form of award: periodic, income-withholding, lump sum, transfer of title to personal prop, or transfer title to real property to pay lump sum; 5. Attorney’s fees: have to be prevailing party and have insufficient means of support in comparison to other spouse; contingency fee for alimony not ok; 6. Requisite findings for postseparation support order: dependent and supporting, resources inadequate and ability to pay, amount, duration 7. Not appealable: impermissible interlocutory appeal; 8. Not res Judicata: has no effect in later claim for alimony; 9. Fault: may be awarded w/o showing fault; dependent spouse may not raise fault first, but if supporting spouse alleges it then dependent can too; “Permanent” alimony 1. Procedure: upon proper request, jury trial on fault only; judge trial for all other issues; filed in action for divorce, alimony, divorce from b&b, or annulment 2. Requirements: dependent and supporting; equitable considering all factors (marital misconduct, indignities, duration of marriage, standard of living) 3. Use of imputed income: must show bad faith to avoid support obligation 4. Amount: to address shortfall between expenses and income of dependent spouse to the extent the supporting spouse has ability to address it; 5. Duration: specified or indefinite; 6. Form of award: periodic, income-withholding, lump sum, transfer of title to personal prop, transfer title to RE to pay lump sum, garnishment of wages; 7. Fault: 1) pre-separation: considered in discretion of judge, but illicit sexual behavior is a bar; other fault irrelevant; if supporting spouse committed pre-separation adultery, then there SHALL be alimony; condonation wipes slate clean; if both spouses guilty the judge’s discretion restored (lifts the bar); to prove, need to show proof of inclination and opportunity 2) postseparation fault: only to corroborate pre-separation fault; 8. Requisite findings & attorney’s fees: same as for post-separation support 9. Modification of alimony: standard is substantial change of circumstances; cannot be retroactive past date of filing; reasons for termination: date specified in order, death of either party, remarriage or cohabitation of dependent spouse, resumption of marital relationship before divorce; PROPERTY DIVISION: Equitable Distribution of Property Act 1. Key phrase: partnership view of marriage, both spouses contribute;