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Alimony in North Carolina – NCGS 50-16.3A

Alimony under North Carolina law is a form of spousal support.  It is “permanent” spousal support where postseparation support is temporary.   North Carolina does not have guidelines that automatically calculate the duration or amount of alimony.  Affidavits are usually a part of eery alimony case in North Carolina.

The principle concepts of award alimony relate to which spouse is the supporting spouse, which spouse is dependent, and whether particular fault grounds  exist.

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Raleigh divorce lawyerScott Allen handles alimony and modification of alimony and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

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Can a Child Decide Which Parent Gets Custody in NC?

Testimony of a Child in NCI often get asked what impact a child’s wishes has on the court’s determination of custody.  In North Carolina, your child does not get the final say.

The law is that the court may use what a child tells him or her as evidence, but the final say is the judge’s.  North Carolina law does not set out an age when a person may be a witness in court.  The legal test is whether the minor is a competent witness and that means they have to be able and old enough to know what it means to tell the truth and can express them selves in an understandable way.

Unless both parties agree, the child must testify from the witness stand.  This is a very stressful event for the child, the parents, lawyers and judge.  Usually, if a child is going to be brought in, everyone wants the impact on the child to be reduced as much as possible.   Usually there is an agreement that the district court judge will talk to the judge in her office.

Regardless of what a child has to say about their preferences, a judge may decide in favor of the other parent.  This is because sometimes the district court judge with find that what the son or daughter is saying has been “bought” by a parent with promises.   Sometimes, the court might find that the child simply does not know what is best for herself.  For example, the parties’ son might prefer to live with the parent who has fewer rules, more flexibility  with curfews,  or  who does not make them do chores.  The maturity of the minor is a factor for the judge to evaluate.

In conclusion, deciding where the child should live is about what is in the best interest of the child and not about what the child says he or she wants.

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Raleigh child custody attrorney Scott Allen handles modification of custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

 

 

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Custody and Visitation by Skype and Facetime

Skype, Apple Facetime and other video-conferencing technologies are being used more and more between parents and their children who are living primarily or temporarily at long distances.  North Carolina law allows the district court judge to order parental visitation via electronic communication in G.S. § 50-13.2(e).

Other states such as New Jersey are adopting laws allowing virtual visitation as well.

“Electronic communication” is defined in the statute as contact, other than face-to-face contact, facilitated by electronic means, such as by telephone, electronic mail, instant messaging, video teleconferencing, wired or wireless technologies by Internet, or other medium of communication.

To grant visitation by electronic communication the North Carolina district court judge must consider:

  • Whether electronic communication is in the best interest of the minor child.
  • Whether equipment to communicate by electronic means is available, accessible, and affordable to the parents of the minor child.
  • Whether there is any other factor the court deems appropriate in determining whether to grant visitation by electronic communication.

The statute does not allow electronic communication as a replacement or substitution for custody or visitation.   This an important point, especially for parents who live long distances form their children.  Also, this makes it clear that electronic communications are merely a supplement to face-to-face and in person visitation.

Electronic communication between the child and the parent may be subject to supervision as ordered by the court.  This no different from any other power the district court judge has to set the parameters of custodial time.

Finally, anticipating that the issue would come up in a child support calculation or modification, the general assembly has made it clear that the amount of time electronic communication is used shall not be a factor in calculating child support. Likewise, the amount of electronic communication may not be used to justify or support relocation by the custodial parent out of the immediate area or the State.

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Wake County family law attorney Scott Allen handles custody and child support cases every day and has over seventeen years of experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.

 

 

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Modification of Child Custody in North Carolina

North Carolina law allows for the modification of a child custody order under certain circumstances.   This article explores the  law and the circumstances allowing the trial court to modify a custody order.

This article assumes that a North Carolina custody order is in place.  A separation agreement that has not been incorporated is not a court order.  A parenting agreement or consent order that has been signed by the parents and the judge is a court order.  An order of a different state that has been registered to allow modification is also the kind of order that can be modified.

Recall that if a judge hears a child custody case where there is no order in place or there is only a temporary order, the legal standard in North Carolina is the best interest of the child.

In a modification proceeding there are actually two legal hurdles before a court may change the order.  G.S. § 50-13.7(a) allows an child custody modification “at any time, upon a motion in the cause and a showing of changed circumstances,” except as otherwise provided in G.S. § 50-13.7A.  (50-13.7A deals with certain situations where a parent is in military service).

The best interest of the child is not considered until there has been a showing of a substantial change affecting the child.    The district court judge must find a substantial change of circumstances before it can change an existing order.

The party seeking modification has burden of showing changed circumstances. However, after there has been a showing of a substantial change affecting the child, neither party has a burden of proof on the question of best interest.

There is no statutory amount of time that must pass before a motion to modify may be filed as long as the person filing the motion can meet their burden and prove a substantial change of circumstances.

So what kinds of circumstances may the court consider?  It is not possible to make an exhaustive list but the basic rules are:

  • The change of circumstances must be substantial;
  • The district court judge must consider changes that have salutary effects upon the child and those which will have adverse effects upon the child;
  • Speculative evidence that a substantial change may occur sometime in the future will not support a change in custody.
  • The evidence must demonstrate a connection between the substantial change in circumstances and the welfare of the child.

Raleigh family law attorney Scott Allen handles child custody cases every day  and has over seventeen years of experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.

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Annullment in North Carolina

Most everyone who gets married and then has immediate second thoughts wants to know if they can get an annulment in North Carolina. Usually the answer is no…. it is not a fix for a bad marriage decision.

An annulment is very different from a divorce.  A North Carolina divorce simply terminates the marital relationship.  An annulment on the other hand, is a judicial declaration that the marriage was void… in essence, that there was no marriage at all.

What are the grounds in North Carolina? This article explores that question.

The grounds for an annulment are

  1. Bigamy.   A bigamous marriage is a marriage between persons either of whom has a spouse living at the time of such marriage.
  2. Marriage within a prohibited degree of kinship that is set out in the statute.
  3. Underage party or parties.
  4. Impotency.
  5. False representation of pregnancy.
  6. Want of will or understanding – lack of mental capacity.
  7. Fraud.

As you can see, some of these legal grounds are not self explanitory.  For example “prohibited degrees of kinship” is defined in the statute and should be explored further if a person is related to his or her spouse before they got married.

The defenses to an annulment lawsuit are:

  1. Ratification of a nonbigamous marriage.
  2. In a nonbigamous marriage, death of a party after cohabitation and birth of issue.
  3. Estoppel.
  4. Lack of standing.

While one would think that a declaration of a void marriage would cut off all claims for spousal support, that is not the case.  Postseparation support may be ordered in an action for annulment pursuant to G.S. § 50-16.1A(4).   Furthermore, just because marriage is annulled, if there are children then claims for child support and child custody are proper.

Like most family law claims, the district court is the proper court to file an action for annulment and a jury trial may be requested.

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Family law attorney Scott Allen has litigated annulment cases and has over seventeen years of experience.  If you have questions or need assistance, call him at (919) 863-4183 or email at sallen@allenspence.com.

 

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Premarital Agreements

NC Premarital AgreementNorth Carolina adopted a version of the Uniform Premarital Agreement Act and our version of the act is is applicable to any premarital agreement executed on or after July 1, 1987.

A premarital agreement is a documents signed by parties  in anticipation of marriage that  addressees what will happen in the event of divorce of a spouse or death of a spouse.

Unlike a regular contract, a premarital agreement is enforceable without the exchange of consideration by the parties.  Consideration was a traditional element of contracts under the common law and, in essence, meant that the parties must bargain for and exchange something of value before a valid contract is created.  In family law, North Carolina has abandoned this common law requirement both in premarital agreements and separation agreements.

Although consideration is not required, a valid premarital agreement under the premarital agreement act must have certain qualities:

  • A premarital agreement must be in writing and signed by both parties.
  • A premarital agreement is effective upon marriage and marriage is a prerequisite of an effective premarital agreement.  This means that if the parties do not marry the premarital agreement is not valid.
  •  Premarital agreements may dispose of their property upon divorce through the provisions of the agreement rather than by equitable distribution.
  • Premarital agreements under North Carolina law may control rights and obligations in property, whenever and wherever acquired or located.
  • “Property” is defined as “an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.”
  • Premarital Agreements may control the right to sell, transfer, buy, use, exchange, abandon, lease, consume, expend, assign, encumber, dispose of, or otherwise manage and control property.
  • Premarital agreements may bar alimony and postseparation support and attorneys fees under certain circumstances.
  • Premarital agreements may control the making of a will or trust to carry out the agreement.
  • Premarital agreements may impact ownership rights in and disposition of the death benefit in a life insurance policy.
  • A premarital agreement may define which law applies to it.
  • Finally, a premarital agreement may control “Any other matter, including personal rights and obligations, not in violation of public policy or a criminal statute.”
Premarital agreements can be attacked under certain circumstances.  Here is an excellent article that deals generally with attacking agreements under the UPAA.
Family law attorney Scott Allen drafts, negotiates, and litigates premarital agreements and has over seventeen years of experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.
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