Tag Archives: Marriage

Is North Carolina a No-Fault State?

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Lately, I’ve encountered lots of people who are confused about whether North Carolina is a no-fault divorce state. In a word, yes. The answer is that this is a no-fault divorce jurisdiction. So…what does that mean?

A no-fault divorce is one in which neither party has to prove marital fault in order to obtain a divorce. All you have to do to get divorced in NC is (a) be separated for at least one year and one day and (b) one of the parties must have lived in the state for the past six months. You don’t have to give the court any reason that you want to get divorced. Nobody has to have cheated. Nobody has to have committed acts of domestic violence. You don’t have to claim irreconcilable differences. Nobody has to have done anything wrong. The facts and circumstances of your divorce can remain between you and your spouse, as far as the court is concerned. You can get a divorce if you meet the two criteria above.

Now, this doesn’t mean that the circumstances of the marriage and the break-up won’t be part of the case if you or your spouse makes claims for alimony, distribution of property, child support, child custody, etc. In deciding those questions, the court may have lots of questions about what went on in the marriage and who did what. But, just for purposes of getting that divorce decree that dissolves your marriage, you do not have to prove that anyone is at fault. Your spouse also cannot stop you from getting a divorce, provided that you can prove that you have been separated for a year and a day, and you have lived here for the past six months. As long as the necessary paperwork is completed and filed accurately and properly, you are entitled to a divorce whether your spouse wants it or not.

Of course, if you are confused about your rights, or what you can and should claim in a divorce, talk to a family lawyer about your unique circumstances. Some of the claims mentioned above, like alimony and division of property, are lost if they are not asserted before the divorce judgment is granted.

Cohabitation in NC

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CohabitationCohabitation has become more common and more accepted in today’s society.  Statistics vary, but some sources claim as many as 60 percent of couples today live together before marriage.  People of different generations, backgrounds, and beliefs could argue all day about whether cohabitation is a good thing or not.  In the end, though, the practice is widespread enough that it is important for unmarried couples to think about the legal options and consequences when they decide to live together.

First off, the North Carolina law that made unmarried cohabitation illegal was struck down as unconstitutional by a superior court judge in 2009.  That decision is not necessarily binding on the whole state, however, so cohabitation may still technically be illegal.  It is unknown so far what other state courts would say on the matter, but the law against cohabitation (passed in 1805) is very unlikely to be enforced.

North Carolina does not recognize common law marriage, and there is no “legal status” associated with unmarried cohabitation.  Thus, a couple who lives together for many years and then breaks up, is still not usually entitled to the remedies associated with divorce:  equitable distribution of property and alimony.  Property is simply divided according to who owns title, and dividing personal property (i.e. furniture and valuables) can of course become very difficult for those whose lives and money have become so intertwined.

So how can cohabiting couples protect themselves and plan for the future?  First, don’t be afraid to talk about these issues before moving in together.  If you’re close enough to live together, you’re close enough to talk about protecting yourselves and each other financially if things end poorly.  Think of this just like betrothed couples discussing a pre-nup — it’s unpleasant to think about, but in some cases essential to protecting your interests.

Second, unmarried couples in North Carolina are free to make contractual agreements to establish rights and obligations should the relationship end.  So although unmarried couples are not granted the rights associated with marriage, they can make express agreements about dividing property in the event of a break-up, and the agreements will be honored by courts (as long as they are not based upon sexual services).  Before acquiring any substantial property interest together, it is very wise to make a written agreement about what would happen to the property if the relationship ended.  It may be a touchy subject, but it’s much easier to reach an agreement when you’re on good terms than it will be if things go south.

Note:  North Carolina still does not recognize same-sex marriage, so this advice applies to same-sex couples who consider themselves married, as well.  Although the law denies the privileges and rights of marriage to same-sex couples, there are ways to secure some of those rights through contract before (and after) joining your lives together. Goodness knows it’s not romantic, but it’s important!

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Gray Divorce

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Gray DivorceAccording to this New York Post article, the divorce rate for those over 50 has risen from about 10 percent in 1990 to 25 percent today.  The phenomenon is widespread enough that it even has a name:  “gray divorce.”  Experts theorize a number of reasons that this might be happening:

  • Longer, healthier life spans lead older people to believe there’s still time to start over
  • Older people are more likely to be on their second or third marriages, which are more prone to divorce
  • Higher expectations for marriage
  • Perception that it’s easier to get divorced than it was in the past
  • Less sense of shame about divorce makes couples less inclined to “stick it out” after the children have left the home.

Whatever the reasons for the trend, there are unique considerations that attorneys and their “gray divorce” clients should take into account.  Unlike many younger couples, for whom custody and child-rearing issues are often paramount, for older divorcees the most important issue is often assets, and the strategic division of those assets is very important for their retirement years.  It is important to divide pensions, insurance policies, and real estate, while hopefully ensuring that each spouse will have money to live on in the “twilight years.”

For couples with fewer assets, divorce can cause financial strain that may mean one or both spouses become partially dependent on their children or the government.  Couples over 50 are more likely to have estate planning already in place as well.  If so, it may be necessary to revisit wills, life insurance, trusts, bequests, and other end-of-life documents to ensure that assets and decision-making power will still be distributed according to each ex-spouse’s wishes after divorce.

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Beating the Odds in Remarriage

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Remarriage statisticsMost Americans have probably heard that the national divorce rate is somewhere between 40 and 50 percent.  We’re used to that scary number.  But many who haven’t been through a remarriage might not know that the divorce rate for remarriages is even higher.  I recently encountered an article in the Huffington Post, citing a divorce rate of 60 to 67 percent for second marriages (at least one spouse married before) and 70 to 73 percent for third marriages (at least one spouse married twice before).  Those are rough odds, and to the uninitiated, it may seem counterintuitive.  Those who remarry should be older and wiser, and should know themselves and their needs better, right?  They’ve been down the road of marriage before, so shouldn’t they understand the stakes and the pitfalls?

All of that may be true, but there are also a number of complicating factors that uniquely threaten remarriages.  The HuffPost article addresses a number of psychological factors that may play a role, such as fear of being alone and looking for a quick fix after a difficult divorce.  Possibly the biggest complication is dealing with children and challenging exes on one or both sides of the new family.  Those who have successfully blended families know that it takes a lot of love, patience, and hard work.

The point of knowing and sharing the statistics about remarriage is not to throw cold water on post-divorce relationships or second and third marriages.  It’s simply to note how important it is to think about the realities of remarriage for you and your situation.  What factors in your life are likely to make things different this time around?  How will you and your next spouse deal with those things together?  Nobody wants to visit a divorce lawyer at all, much less for more than one case in a lifetime.  It takes courage and thoughtfulness to start over, so take your time and address the challenges honestly so that you can beat the odds the next time around.

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5 Things to Know About Stepparent Adoption

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Stepparent Adoption

Stepparents generally have few or no legal rights or responsibilities when it comes to their stepchildren.  In some cases where a stepparent is the only mother or father the child has known, however, or where the family wishes to make the bond of family “official,” adoption of the child by the stepparent may be possible.  Here are five things to know about stepparent adoption in North Carolina:

1.  A stepparent who adopts agrees to become the legal parent of the spouse’s child, and to assume all the rights and responsibilities that the child’s biological parent would have.  Adoption is for life, even if the adoptive parent and biological parent divorce.

2.  Consent must be given by: (1) the parent who is the stepparent’s spouse; (2) the parent who is not the stepparent’s spouse (if necessary); (3) a guardian of the minor child; and (4) the minor child if 12 or older.

3.  In order to file the petition for stepparent adoption, the child needs to have lived primarily with the stepparent for at least 6 months immediately before filing.

4.  The stepparent who adopts must be legally married to the parent who has legal and physical custody of the child.

5.  The parties in a stepparent adoption may agree to release past due child support payments and attach the agreement to the adoption petition.  Otherwise, even a parent who has consented to adoption by a stepparent, continues to owe any past-due child support.

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Legal Separation in North Carolina

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Separating from spouse

People often seem to be confused about the process of separating from a spouse.  The requirements for marriage, divorce, and other family law matters are determined by state law, rather than federal law.  Therefore, the laws on these issues vary dramatically from state to state.  Movies, media, and even the experiences of friends in other states therefore often mislead and confuse people about how to legally separate from a spouse in North Carolina.

In North Carolina, in order to get an absolute divorce on the grounds of separation (which is most common), a couple must have been separated for a period of one year.  There is no need to prove fault or obtain a court decree.  Separation simply means that the couple physically lives separate and apart — not under the same roof.  At least one of the parties must intend to cease cohabitation — the intent of the other spouse is irrelevant to the claim.  In North Carolina, there is no need to show that both parties agreed to the separation or to have a decree of the court declaring that they have separated.  After a year has passed since the couple stopped cohabiting, either party can secure an absolute divorce upon proof that the couple has been separated for the statutory period of one year.  Once that is proven, neither spouse can contest the divorce, as long as all other technical requirements have been met.

Even if you have been separated for a year, however, talk with a lawyer before filing for absolute divorce to ensure that you do not forfeit any important claims that may be available in your case.

Separated Spouses and Sex, Part 2

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19168112_mAlimony & Post-Separation Support

             Sex during the separation period can potentially be a big problem for a dependent spouse who plans to ask for alimony.  Marital misconduct can be an important factor in the outcome of alimony claims in North Carolina.  While having a sexual relationship after the separation does not constitute marital misconduct, a judge might consider it to be corroborating evidence that an affair was going on before the date of separation.  In an alimony case, the dependent spouse is the one who receives alimony, and the supporting spouse is the one who pays alimony.  In North Carolina, a dependent spouse who would otherwise be entitled to alimony is completely barred from receiving alimony if he/she had an affair while the parties were living together.  Likewise, the supporting spouse may enter a sexual relationship after the date of separation without affecting his/her duty to pay alimony, but the Court could consider it as corroborative evidence of an affair before the separation.  This use of post-separation sex to corroborate an allegation of marital misconduct can particularly become an issue when each party is trying to prove that the other had an affair for alimony purposes.

             Under North Carolina law, alimony and post-separation support that have been awarded to a dependent spouse terminate when the dependent spouse remarries or engages in cohabitation.  North Carolina General Statute § 50-16.9(b) says that “[c]ohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.”  So a sexual relationship that the Court might see as evidence of cohabitation can lead to the early termination of alimony and post-separation support.  If alimony and post-separation support are an issue in your case, talk candidly with your lawyer about protecting your claims if you are involved in a sexual relationship.

 “Heart Balm” Lawsuits

             If you have lived in North Carolina for long, you might have heard that we are one of a handful of states that allow a spouse to sue the person with whom their spouse cheated.  These actions are called “heart balm” actions, presumably because they are supposed to help heal the heart of the jilted spouse.  The first cause of action is called Alienation of Affection, in which the person who files the suit must prove that a third party caused his/her spouse to lose affection for them.  Sex does not have to be part of this claim, but the courts have ruled that sex before the date of separation can help prove alienation of affection.  Just as with alimony, sex that occurs after the parties have separated can be used to corroborate that there was already a sexual relationship before the separation.

             Of the two heart balm torts, Criminal Conversation is an easier claim to prove than alienation of affection, because the jilted spouse who files suit only has to prove that extramarital sex occurred and that he/she was legally married when their spouse was having sex with the third party.  Once again, post-separation sex can be used to corroborate conduct that occurred while the couple was still living together.  The bottom line is that you should know that engaging in sex while you are separated from your spouse could place your sexual partner in jeopardy of a lawsuit.

Separated Spouses and Sex, Part 1

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            This is the first post to the Hickory Family Law Blog, so let’s jump right in with a common and controversial topic:  when is it okay to have sex after you separate from your spouse?  This issue comes up often as people transition from married life back to being single.  Dealing with the hurt and pain that usually accompanies divorce, in addition to the practical issues like finances and custody, makes this is a tumultuous time for many people.  North Carolina requires a one-year separation period before spouses can file for absolute divorce.  During this separation period, it is not unusual for one spouse to want to hold on to the marriage, while the other is ready to move on with life and begin dating again.  It is important to know that sex during the separation can cause many problems and can have a negative effect on your divorce.

Sex With the Ex

            Under the North Carolina statutes, isolated instances of sex with your separated spouse do not constitute a reconciliation that would cause the one-year separation period to start over again.  Resuming a regular sexual relationship (as opposed to isolated incidents), however, can be one factor a court would consider in deciding whether a couple has “resumed the marital relationship,” thus restarting the one-year period.  While you and your spouse may want and mutually decide to reconcile, be aware that resuming a sexual relationship with your separated spouse may have an effect on when the court finds that you were legally separated from your spouse for purposes of post-separation support, divorce, and equitable distribution if the reconciliation is not permanent.  With all of the other complicated emotional, financial, and legal issues involved in separation and divorce, having sex with your ex can make things significantly more complicated and confusing.  It is important to think about the consequences for yourself and your divorce proceedings before resuming a sexual relationship with your separated spouse.  If it has already happened, or you are considering reconciliation, talk with your lawyer about the effect your choices can have on your case.

Criminal Adultery

             Now that we have addressed having sex with the person from whom you’re separated, let’s talk about sex with other people.  Under North Carolina law, having sex after separation, with someone other than your spouse, constitutes the crime of adultery.  Believe it or not, North Carolina General Statutes § 14-184 makes adultery a Class 2 misdemeanor.  Enforcement of this statute is rare, but it is common for sex during separation to affect negotiations and lawsuits.  A relatively amicable divorce proceeding can turn nasty very quickly if one spouse finds out that the other has already begun a sexual relationship with another person.  This can cause resentment and bitterness that may encourage the “left behind” spouse to be more difficult in negotiation and legal tactics.  While this law is rarely enforced, committing adultery does mean that you risk having a criminal record, which could impact your job, your custody case, and the judge’s perception of you.  While you are separated, it is important to conduct yourself in a manner that will not reflect poorly on you in the eyes of a judge whose decisions have significant impact on your future.