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The Top Five Reasons a Divorce Matters in North Carolina

The Top Five Reasons a Divorce Matters in North Carolina

The Top Five Reasons a Divorce Matters in North Carolina By Amy A. Edwards In North Carolina, a spouse can file a claim for divorce only a separation of at least twelve months. Besides the ability to allow someone to remarry, a divorce is important for a number of reasons. This article isn’t legal advice, and it does not cover all of the reasons. But it highlights a few examples of why someone who is served with a complaint absolutely needs to contact a lawyer immediately. Reason #1 – Marital Property Married people who separate can file a claim for equitable distribution, asking the court to divide marital property equally (instead of just relying on which name is on the title or deed). Our state creates a deadline for filing those claims, and the clock starts ticking when a divorce complaint is filed. Failure to properly file for marital property division within the correct time period means it is permanently lost. Reason #2 – Health Insurance Family plans that cover both spouses and any children change the moment a divorce decree is entered. As of that moment, a spouse is no longer “related” for purposes of a family plan because they are no longer a family member. Children of the person who provides health insurance remain on a family plan after a divorce. Reason #3 – Estate Rights Inheritance rights between spouses are completely different from those of non-spouses. This is a very complicated area of the law that can be related to whether a claim for marital property. Examples of potential rights upon the death of a spouse include an allowance of money, the right to a share of the assets if there is no will, and the right to contests a will. Designation as a spouse or former spouse can involve Social Security benefits, military benefits and other survivor’s benefits. Reason #4 – Liens Against the House Married people are sometimes protected from creditors if only one of them created a debt in his or her sole name. For example, the innocent spouse who did not sign a credit card application is usually, but not always, protected from money judgments that would otherwise become a lien against the marital residence. The moment the innocent spouse becomes an ex-spouse, this can trigger a lien against the property even if the debt (such as credit card debt) is not...

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How a Contract Magically Becomes a Court Order: Incorporation

How a Contract Magically Becomes a Court Order: Incorporation

How a Contract Magically Becomes a Court Order: Incorporation  In the world of family law in North Carolina, there are three ways to address agreements: contracts, court orders and incorporation. Contracts Contracts are agreements signed by the parties, such as a separation agreement. If someone violates the contract, it is called breach of contract. A contract is enforced by a “specific performance” lawsuit, asking the court for an order requiring him or her to perform the specifics of the contract, such as signing a deed, refinancing a mortgage obligation, etc. A contract generally can’t be changed by the court. However, the court always has the authority to change anything related to child custody and support until a child is 18 years of age, regardless of what the parties set out in a contract. Court Orders Court orders are only available after a lawsuit has been filed, and they must be signed by a judge to be valid. The best part about a court order is the remedy. A party who violates the court order is subject to being held in contempt of court for failure to obey the court order. The contempt power of the court gives the judge discretion to do whatever he or she sees fit to enforce the order, depending on the circumstances presented. Although they don’t usually do so until after someone demonstrates they will remain obstinate, judges have the authority to incarcerate someone who continues to disobey court order. Orders can be registered in any state to be enforced with the full faith and credit of another state. Incorporation Our state has what is called incorporation, a special process by which a separation agreement “magically” becomes a court order once a judge signs it. But a judge cannot sign anything until there has been a lawsuit filed. Incorporation is done only by agreement, which is usually mentioned in a separation agreement. After a full year of separation has passed, either spouse can file for a divorce. When the judge signs a divorce decree, he or she also has the authority to incorporate it into the decree, permanently making it an order of the...

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Can My Underage Daughter Get an Abortion Without Me Knowing?

Can My Underage Daughter Get an Abortion Without Me Knowing?

Can My Underage Daughter Get an Abortion Without Me Knowing? By Amy A. Edwards This question is equivalent to asking whether your underage daughter has the right to consent to an abortion independently of parents. Nothing in the law is absolute. The answer to this question is maybe yes, and maybe no. In North Carolina, the law on abortion is the Woman’s Right to Know Act, which defines it as: “The use or prescription of any instrument, medicine, drug, or other substance or device intentionally to terminate the pregnancy of a woman known to be pregnant.” Termination is lawful to “preserve the life or health of the child” or to “remove a dead, unborn child who died as the result of . . . natural causes . . . accidental trauma, or . . . a criminal assault on the pregnant woman or her unborn child which causes the premature termination of the pregnancy.” Abortion is legal during the first 20 weeks of pregnancy. Information and Consent of the Female A medical professional must get any woman’s voluntary and informed consent, whether she is a minor (under 18) or an adult, at least 3 days before an abortion. The professional must provide information on a number of topics to her, including information about the medical risks of both an abortion and carrying a child to term, resources and available options, including adoption, public assistance for prenatal care, childbirth, and neonatal care. She is also informed that “the father is liable to assist in the support of the child, even if the father has offered to pay for the abortion.” The law requires the state to create and maintain a web site of the information. Although there is not a certain age when a minor is capable of giving consent to an abortion, she must have the legal capacity to understand her health status and options, and be able to make decisions about them. For example, if a girl is 15 years old, does she truly understand the real consequences of being pregnant, let alone those of having an abortion? A pregnant minor cannot be forced to have an abortion. Adult Consent In the more general statutes, a minor who is not emancipated has the right to consent to certain medical treatment without a parent’s consent. Any minor may give effective consent to “medical health services for the prevention, diagnosis and treatment...

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Order in the Court: The Nuts and Bolts of Court Orders

Order in the Court: The Nuts and Bolts of Court Orders

Order in the Court: The Nuts and Bolts of Court Orders In the world of family law, orders define rights as between spouses and former spouses, as well as between parents of children. Each state has a unique definition of a court order. This article applies only to family law cases in North Carolina. How Do We Get Court Orders? The first step in obtaining a court order is filing a lawsuit, which gives the court jurisdiction and the authority to sign a court order. Temporary orders are based on a short trial of only a few hours, on a date shortly after the case is filed. These hearings can be rushed and chaotic but they’re only meant to give parties some structure until the full trial takes place. Full trials give them the opportunity for the judge to hear testimony of the parties and their witnesses, and offer more thorough exhibits. What Are the Mechanics? After a trial, judges sometimes write their own orders. This is more likely to happen with temporary orders, such as temporary child custody. Other times, judges assign the task of writing an order to one of the attorneys. After a judge signs a written order and the clerk of court files it, it is an official order. Filing means the signed order goes to the clerk of court’s office where the clerk stamps it. The special stamp shows the date and time that the order was placed in the court file, which includes all the paperwork filed in the case. What’s Included in a NC Court Order? The first part of the order is called Findings of Fact, where the judge makes a legal ruling on the disputed or contested facts, such as whether a spouse committed adultery. Next, orders typically have conclusions of Law. This is the “legaleze” part of the order, where the judge says (i.e., concludes) what the law requires based on those particular facts. The actual Order is the part most people think of when they think of an order. For example, it awards custody and includes visitation schedule, sets an amount of child support or alimony, or says who keeps marital property. Consent Orders When a lawsuit has been filed and the parties decide to settle their case without a trial, the judge will sign what is called a Consent Order. That means the parties give the judge their consent to sign...

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All About Adultery in North Carolina (Part 2 of 2)

All About Adultery in North Carolina (Part 2 of 2)

All About Adultery in North Carolina (Part 2 of 2) By Amy A. Edwards Part one of this article looked at adultery as it relates to alimony. In North Carolina, adultery can impact several legal rights, such as a legal separation, inheritance rights, criminal conversation, and even property ownership.   Adultery: Duty of Third Party to Warn Spouse of STD If a husband or wife passes a sexually transmitted disease (STD) to the other spouse as a result of his or her adultery, the innocent spouse may with a civil suit for financial damages against the man or woman who passed the STD to the husband or wife. To successfully prove a claim for negligent infliction of an STD, the victim spouse must prove the source of the STD, and that the infected person knew or should have known he or she was infected with venereal disease. Because it is foreseeable that the two spouses would have intercourse, the infected person has a legal duty to abstain from sexual contact, or at least a legal duty to warn the innocent spouse. Adultery: Criminal Conversation The term criminal conversation (CC) is somewhat misleading. Although it sounds like a crime, it is not. Instead, CC is a civil lawsuit for money damages. A married person may file a claim for CC against the third party who had sexual intercourse with his or her spouse. CC holds that third party financially accountable to the husband or wife for interference with his or her marital conjugal relationship, which is protected by law. Although the unfaithful spouse is not on the hook for financial damages, he or she generally testifies in a jury trial about the acts that took place. Alienation of affections is a completely different lawsuit that addresses alienating or stealing the spouse, regardless of whether there was sexual intercourse. CC is exclusively based on sexual intercourse. Adultery: Divorce from Bed and Board North Carolina recognizes a fault-based claim called divorce from bed and board (DBB), and one of the grounds for it is adultery. A decree for a DBB does not a “divorce” the husband and wife allowing them to remarry. It is a court decree that declares the spouses to be officially separated. This keeps a spouse from committing abandonment if he or she wants to separate. Instead, if a spouse successfully obtains a DBB, the spouse who committed adultery loses...

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