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92 Cards in this Set

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  • Back
What are the types of divorces in NC
1. absolute divorce

2. divorce from bed and board
How does a voluntary dismissal affect equitable distribution claim after a absolute divorce?
If alimony and equitable distribution claims are properly asserted by the filing of an action or a counterclaim and are not voluntarily dismissed pursuant to Rule 41(a)(1) until after a judgment of absolute divorce is entered, a new action based on those claims may be filed within the one-year period provided by Rule 41(a)(1). Therefore, where plaintiff wife's claims for alimony and equitable distribution were pending at the time an absolute divorce was granted in defendant husband's action, and plaintiff thereafter voluntarily dismissed those claims pursuant to Rule 41(a)(1), plaintiff could properly refile those claims within one year of the voluntary dismissal
Does NC recognize a contract to marry?
Yes, NC recognizes a the cause of action for breach of a contract to marry.

Note: the action requires that there be mutual promises to mary and that one party refuses
What are the defenses for breach of contract to marry?
1. that either party was married at the time promises were exchanged, and that the other party knew of such

2. that the promise was based upon illegal consideration (sex)

3. that plaintiff misrepresented matters considered to be "essential: to marriage such as impotency
What is the general rule for engagements rings?
when a gift is made "in consideration of marriage" the donor may be able to recover the gift if teh marriage does not take place
What are the requirements for premarital agreements?
1. writing--premarital agreements are to be in writing and to be signed by both parties
What can a premarital agreement refer to?
1. property rights upon divorce or death

2. making of wills "modification or elimination of spousal support and any other matter nto in violation of public policy.
What is the rule for child support and premarital agreements?
parties may not contract so as to adversely affect the right of a child.
What needs to be proven to make a premarital agreement unenforceable?
1. the party did not execute the agreeement voluntarily or

2. agreement was unconscionable when it was executed and before execution of the agreement, that party:

1. was not provided a fair and reasonable disclosure of the property or financial obligations of the other

2. did not voluntarily and expressly waive, in writing, any right to discloure of the property or financial obligations of the other party beyond the disclosure provided and

3. did not have or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party
What is the rule for modifying or eliminating spousal support in pre-marital agreements?
if a provision in the premarital agreement modifies or eliminates spousal support, causing one party to be eligible for public assitance, at the time of seperation or marital dissolution, the court may require the other party to provide support to the extent necessary to avoid that eligibility
Is independent counsel necessary to prove that premarital agreement was not voluntary?
No, independent counsel is not required to prove that the pre-marital agreement was involuntary.
What is the rule for a pre-marital agreement if the agreement given before the night of the marriage?
the agreement was given the night before the wedding along with the threat of no marriage unless signed insufficient to resist enforccement of the agreement.
What is the burden of proof for trying to invalidate a pre-marital agreement?
party must prove that the agreement as both unconscionable and that the disclosure requirements were not met.
What are the contractual rights of the unmarried cohabitants?
General rule--agreements regarding finances and property of unmarried but cohabitating couples, whether express or implied are enforceable provided that there is consideration to support the contract.

Note: no contractual agreement for a wife claiming support after helping her husband get education.
What are the requirements for a marriage licenses?
must be signed by the register of deeds in the county in which the marriage license was issued.
What is a valid marriage ceremony?
the consent of a male and female person plainly expressed by each in the presence of the other and in the presence of an ordained minister of any religious denomination
What is the rule for getting married for a couple who are between the ages of 16-18?
Generally may marry only after written consent to the marriage has been obtained from a parent having full or joint legal custody of the underage party or by a person, agency or having legal custody.

Note: consent is not required for an emanciapted minor
What is the rule for marriage for minors between the age of 14-16?
unmarried female more than 14 but less than 16 is pregant or has given birth to a child and she and the putative father of the child agree to mary, or if the unmarried male more than 14 but less than 16 is the putative father, and the unmarried male and mother of the child agree to marry can marry only after a district court authorizing the marriage is filed with the register of deeds

Note: a district court judge can authorize the marriage after conducting hearing and finding of fact and concluding as a matter of law that the underage party is capable of assuming responsibilities of marriage will serve the best interest of the child.
What is a void marriage?
a void marriage has no legal effect.
What are the rules for attacking a void marriage?
1. may be collaterally attacked by any person

2.Can be attacked at any time, even after the death of one of the parties

3. may not be ratified
What is the only void marriage, recognized in NC?
only bigamous marriages are void
What are the presumptions regarding bigamy?
1. a marriage once shown to exist will be presumed to be valid

2. the most recent marriage is valid
(a) first marriage ended in death of the first spouse
(b) the first marriage ended in divorce

Note: in NC presumption of the validity of the second marriage will not be raised in favor of a common law marriage
What is Estoppel of a void bigamous marriage?
Ex-H who urged W to obtain and helped her to get an invalid Domican Republic, H is estopped from denying the validity of this subsequent marriage to wife.
What is Enoch Arden Doctrine?
1. presumption of death after a spouse's unexplained absence for 7 years.
What is a voidable marriage?
certain impediments may cause a marriage to until the aggrieved party obtains annulment the marriage is valid.

Note: if a voidable marriage is ratified by the aggrieved party, of one of the parties dies, the validity of the marriage may not be question or attacked by any person.
What are the characteristics of a voidable marriage?
1. valid until annulment action is brought

2. can only be attacked by one of the parties to the marriage

a. Exception parent legal guardian of a child under the age of who obtained a marriage license by fraud or misrepresentation have standing to sue for annulment

3. must occur during their joint lifetimes

4. may normally be annulled only by the aggrieved party. The guilty party may be equitably estopped, "clean hands" doctrine from attacking the marriage

5. may be ratified by the parties, so that no annulment can take place
What is ratification for voidable marriages?
1. the impediment to the marriage is removed and

2. parties to continue to live together as husband and wife
What are the voidable marriages?
1. non-age underage party may ratify the marriage upon reaching the required age by continued cohabitation.

2. Impotence

3. Mental incapacity

4. Incest

5. fraud.
What is general for fraud of the marriage?
General rule for fraud must go to the "essence" of the marital relationship to be sufficient.
What is the only fraud recognized in NC?
hte only ground for annulment in NC involves the situtation of a misrepresentation of pregnancy followed by a seperation for one year, within 45 days of the marriage, provided that no child is born within 10 lunar months
What is the effect of an annulled marriage?
Post-seperation support and attorney fees are allowed

Note: permanent alimony and equitable distribution of property are not with an annulment.
Can spouses enter into contracts?
Yes, spouses may contract with each other and about their marital property so long as the agreement

(i) is in wrting and signed by both and

(ii) is deemed equitable by both parties
How to change surnames?
married woman to resume maiden names, so long as "good and sufficient"cause is shown.
What is criminal conversation?
plaintiff must prove the following:

1. plaintiff and his or her spouse were married and

2. defendant ahd voluntary sexual intercourse with plaintiff
How do prove adultery under criminal conversation?
1. inclination (proof some public affection)

2. Opportunity
What happens if a spouse pleads the Fifth under civil claim of criminal conversation?
1. if a spouse takes the fifth on the stand or deposition gives rise to an inference of adultery that may be drawn by a jury.

2. A spouse seeking alimony who pleads the Fifth is deemed to have waived his or her claim to alimony.
What are the elements of alienation of affection
plaintiff and his spouse or her spouse were married

2. with at least some love and affection existing between them

3. the love and affection were alienated by the wrongful and malicious acts of the defendant

Note: adultery is not necessary element of tort (can be brought against in-laws)
What are the requirements for divorce from bed and board?
1. resideny one of the parties to the action must have been a resident of NC for 6 months before bringing the action.

2. fault
What are the faults for a divorce of bed and borad?
1. abandonment

2. maliciously turns the other out of doors

3. cruel and barbarous treatment endangers the life of the other

4. Officers such indignities to the person of the other as to render his or her condition intolerable and life burdensome

5. becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome

6. Commission of adultery
Note: proof that plaintiff has committed adultery in a bed and board action is a defense to the action. It is also bar to alimony
What is abandonment under Bed and Board?
one spouse brought the cohabitation of the parties to an end

2. without the consent of the other spouse

3. without the intent renewing it

4. without justification
What is constructive abandonment for divorce of bed and board?
Ex--Wife sues for bed and board husband retorts that wife constructively abandon him because she would refuse to have sex with him
How do you get an absolute divorce?
1. Jurisdiction

2. continous separation for one year
What are the residency requirements for absolute divorce?
bona fide resident of NC for 6 months preceding the commencement of the action

Note: long arm statute-personal jurisdiction over any matter in regards to the marital relationship continues to reside in this state.
When is there reconciliation for an absolute divorce?
reconciliation will occur if the parties live together and hold themselves out as husband and wife, regardless if they have sex

Note: isolated sexual incidents does not equal reconciliation
What is the effect of reconciliation on an absolute divorce?
restarts the one year period

void any unexcused portions of separation agreement

change of the accumulation of marital property

change the date at which marital property is to be valued
What is post-separation support?
in an action for divorce (absolute, bed and board, annulment or alimony without divorce) either party may move for post separation support.
What are the factors for post separation support?
1. financial needs of either party

2. accustomed standard of living

3. present employment income

4. income-earning abilities
How does marital misconduct affect post separation support?
at hearing on post-separation, the judge must consider marital misconduct by the dependent spouse occuring prior to or on the date of separation in deciding whether to award post separation support and in deciding the amount of post-separation support
When can someone get alimony?
in action for divorce, bed and board or absolute divorce.

Note: when there was illicit sexual behavior the court must award alimony to the dependent spouse.
What is the general rule for illicit sexual behavior in regards to alimony?
if the court finds that the dependent spouse participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, the court is prohibited from awarding alimony
What are the relevant factors for alimony?
1. marital misconduct

2. earning capacities of the spouses

3. ages, physical emotional conditions

4. sources of earned and unearned income

5. duration of marriage

6. helping a spouse get educated or increasing earning power

7. how expenses will be affected for caring for a minor child

7. standard of living

8. education of the spouses

9. assets and liabilities

10. property brought to the marriage by either spouse

11. contribution as a homemaker

12. relative needs of the spouses

13. federa state and local taxes consequences
Under alimony can each spouse request a jury trial?
Yes, either spouse may request a jury trial
What is the rule for attorney fees for dependent spouse?
a dependent spouse is entitled to reasonable counsel fees paid by the supporting spouse.
What if both spouses commit illicit sexual behavior in an action for alimony?
If both spouses have committed an act of uncondoned, illicit sexual behavior on or before the date of separation, then the statute directs the trial court in § 50-16.3A(b) to consider all the statutory factors.
How do you modify alimony?
General Rule can be modified upon a motion and a showing of changed circumstances of either party
How do you terminate alimony?
General Rule--post separation support or alimony from a supporting spouse under a judgment or court order remarries or engages in cohabitation the post separation support alimony terminates, reconciliation

Note: For actions filed on or after October 1, 1995, the modification statute now provides that postseparation support and alimony terminate when the dependent spouse ''engages in cohabitation
What are the procedures for filing for Equitable Distriubtion?
1. file any time after the parties have separated

2. ED survives the death of a spouse

3. failure to plead for equitable distribution is fatal

4. asset disclosure--within 90 days after a claim is filed. The other party must responds within 40 days.
What must the court determine for ED action?
1. valuation--ED marital property is valued as the date of the separation of the parties

2. court must then divide the marital property
i. equal presumption there is a presumption that an equal division is equitable

Note: the court is required to make findings of fact to support either an equal or an unequal divison of property
What is marital property?
General Rule--all property acquired after the date of the marriage and before the date of separations marital property

Note: the bruden of proof for separate property is the party claiming that it is separate property
What is the source of funds
acquisition--marital estate is credited with the funds it expected towards acquisition and also shares in any appreciation of the property

presently owne--conversion of propert between the date of separation and the date of divorce simply has no effect on its character and courts wil trace the property back into the marital estate.

before-the date of separation--right to receive funds or assets is acquired before the date of seperation, the fact that the funds or assets are not actually received until after separation does not, under the source of funds doctrine deprive such post-separation of assets of their marital character
Under source of funds rule, how are pensions funds treated?
General Rule--marital property includes all vested pension, retirement and other deferred compensation.
What are the two options for distributing pensions?
1. if there are sufficient marital assets for one spouse to "buy out" the other's pension benefits, then the benefits will be reduced to a "current discounted" value and the non-pensioned spouse may receive a distributive award for presumptively half of the pension benefits earned during the marriage of the parties

2. if a distributive award is not possible
What are considered seperate property?
1. before marriage

2. bequest devise gift

3. exchanged property

4. increased value
What is exchanged property under separate property?
General Rule- acquired in exchange for seperate property will remain seperate property

Exception: seperate property is exchanged by being placed in tenancy by the entirety; the presumption of gift prevails and the property so acquired is marital property
What is the active/passive analysis for separate property?
increases in value of seperate property owing to marital efforts active increases will be marital property

Note: non-vested pensions plans are separate property
When are the guidelines for child support not applicable?
Child Support is looked at a case-by-case analysis when the income is greater than 15,000
How is child support modified?
the court has the ability to modify an earlier order where the proponent of the change successfully establishes that there has been a change in the needs of the child.
When does child support is terminated?
1. chidl reaches the age of 18

2. child is emancipated

3. unless the child is enrolled in primary or high school, in which case child support is to be continued until the child reaches the age of 20.
What type of notice is needed for child support?
Motions for support of a minor child in a pending action may be made on ten days' notice to the other parties.The law requires notice to parents whose addresses are reasonably ascertainable, and any person, agency, organization or institution having actual care, custody or control of the minor child or required by court order to support a minor child even if they are not named as parties. The notice must be made in accordance with the North Carolina Rules of Civil Procedure and must contain the name of the child, the names of the parties, the court in which the action was instituted, and the date instituted.
How is child support enforced?
1. by civil contempt, criminal nonsupport prosecution income withholding order or attachment of property

2. federal remedies

3. personal jurisdiction-is required in order to impose or mofidy an order of child support
How is jurisdiction determine in custody of children?
1. custody is an en rem action, but all states have adopted UCCJEA

1. home state alaways has jurisdiction

2. original state has continuing exclusive jurisdiction as long as any party in the state

3. another state may modify if it has jurisdiction and original state declines to exercise jurisdiction
What is the standard for determining custody?
Best interest standard of the child
What are the ways of determing jurisdiction for child custody?
If there is a home state, that state has the right to make an initial determination to the exclusion of all other jurisdictions. A home state is defined as ''the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.'' The definition further provides that for a child less than six months of age, ''the term means the state in which the child lived from birth'' with a parent or person acting as a parent.
What is the rule when home state issues the custody order?
when the home state makes an initial child custody determination, the home state retains exclusive jurisdiction to modify the determination so long as one of the parties remains in the state and the home state determines that it is still the home state of the child, or has significant connection jurisdiction
How is jurisdiction determined when a party wants to modify a child custody order?
Jurisdiction to Modify, guarantees that the courts only of the state that issued the initial order may modify the initial child custody determination unless the issuing state determines that it should not. A court of the issuing state might reach that conclusion because it determines that it no longer has exclusive, continuing jurisdiction, or it determines that the court of another state would be a more appropriate forum.
When can court decline jurisdiction based on covenience?
When a court declines to exercise its jurisdiction for the reason that there is a more appropriate forum, it must make findings to support its decision
What are the factors for determining the best interest of the child?
1. primary care giver

2. paretn guilty of misconduct

3. parent oral fitness
What is the general presumption for child custody?
presumption in favor of parents

Note: custody dispute between parent and non-parent there is a presumption for the parents

Note: grandparents can get custody if shown the parents are unfit.
What is the rule for visitation for grandparents?
a court may grant visitation upon divorce annulment to grandparents stepparents or other adults who have established a substantial relationship with the child if such an order is in the best of interests of the child
What has to be proved first to change a custody order?
For the first prong of the requirement, the substantial change of circumstances, the law puts the burden of proof on the moving party -- the party seeking modification. For the different requirement for the best interest prong of the standard for modification
What are the factors that determine the substantial chanage circumstances for modification of child custody orders?
the factors must relate to the child's best interest and focus on the child's present or future well being, and they may refer to the relationship with the custodians, the wishes of the child, the character, personality, or conduct of the custodians, and the environment in which the child lives or visits.1066 Also like the original order, a party will usually offer a number of factors, and the court may consider whether alone or cumulatively, the changes constitute a substantial change. Unlike the original order, however, the burden of proof is on the moving party
What are the requirements for seperation agreement?
Today the statute on separation agreements, N.C. Gen. Stat. § 52-10.1 , requires only that the agreements be in writing and acknowledged by both parties before a certifying officer
What is the rule for separation agreement and alimony?
1. a valid separation agreement will be a bar to alimony and will insulate a party from the effects of any adultery committed after the agreement is signed.

2. it will bar ED

3. Enforceable as a court order
What is merger of a seperation agreement?
''Merger'' is a process involving the agreement and the divorce judgment, and the best way to define the term is to describe the relationship that emerges from the process. If the merger of the agreement and the court decree is complete, then the agreement has lost all attributes of a contract and has ''merged'' into the court decree.

Note: integrated alimony will not be modifiable

What happens to seperation agreement if it is not merged into a court decree?
On the other hand, if there is no merger of the court decree and the agreement, then the agreement remains a contract and a contract only, with no attributes of a court decree.

Note: alimony is modifiable

Note: child support provisions may be modified
Who can bring an action for legitmacy and paternity?
can be brought by mother, father, the child or social services
How can some parental rights be terminated?
1. can be brought by anyone with whom the child has resided for 2 years, guardian ad litem, DSS or a parent
What are the grounds for terminating parental rights?
Abuse or Neglect

1. Abuse
(1) moral
(2) Substantial risk of serious physical injury

2. Neglect

(1) no child support for one year

(2) foster are placement
What is equitable adoption?
doctrine is invoked for the sole benefit of the foster child in determining heir ship upon the intestate death of the person or person contracting to adopt
Who may be adopted?
1. a minor child (if over 12--the minor must consent)

2. adults may be adopted
How are some ways a post-seperation support is terminated?
Ordinarily, a final order for alimony without divorce terminates an order for subsistence pendente lite. Harris v. Harris, 258 N.C. 121, 128 S.E.2d 123 (1962).

A final order in a case for alimony without divorce terminates an order for alimony pendente lite. Peeler v. Peeler, 7 N.C. App. 456, 172 S.E.2d 915 (1970), overruled on other grounds, Stephenson v. Stephenson, 55 N.C. App. 250, 285 S.E.2d 281 (1981).

Ordinarily, the award of permanent alimony terminates an order for subsistence pendente lite or counsel fees
What is the rule for post-seperation support?
defines postseparation support as spousal support to be paid until the earlier of either the date specified in the order of postseparation support, or an order awarding or denying alimony. Under the plain language of N.C. Gen. Stat. § 50-16.1A(4) postseparation support may continue despite a judgment of divorce if the postseparation support order does not specify a termination date and there is no court order awarding or denying alimony. This is in sharp contrast to the old alimony pendente lite (APL) statute, which provided that APL terminated upon a judgment of divorce. N.C. Gen. Stat. § 50-16.1(2) (repealed 1995).In addition to terminating by definition on the date specified in the order, if one is so specified, or upon entry of an order awarding or denying alimony, postseparation support also terminates upon the death of either the supporting or dependent spouse, upon the remarriage of the dependent spouse, or when the dependent spouse engages in cohabitation