NC Family Law Flashcards
(41 cards)
Premarital Agreements (“Prenups”)
NC adopted the Uniform Premarital Agreement Act (UPAA)
Alters the rights of one spouse in the property of another, or reclassifies what would typically be marital property.
NC courts will enforce so long as voluntary and not:
- Unconscionable when executed; or
- Without full disclosure of other spouse’s assets/obligations
Who bears burden of proof when invalidating prenup?
The party seeking to invalidate
What subject matter can prenups relate to?
Typically property, but can be anything not contrary to public policy. Clauses against public policy will be severed and not enforced.
Example: Can’t change grounds for divorce or limit a child’s right to support.
Separation Agreements
Used when parties still married but decide to live apart.
Enforceable so long as meets general K requirements, is in writing, signed, and notarized.
Cannot adversely affect:
- Child’s right to support; or
- Spouses right to post-separation support
Settlement Agreements
Resolves issues that would typically be resolved in a divorce action.
Enforceable so long as meets general K requirements, in writing, signed by parties, and notarized.
Again, can’t violate pub policy.
CAN waive the right to alimony because the spousal obligation of support ends absent court imposition!
Separation Agreement v. Settlement Agreement
Separation Agreement = Still married, living apart
Settlement Agreement = Divorced
Premarital Disclosure
Spouse must have a chance to get full disclosure re: financial assets/obligations of other spouse.
CAN BE WAIVED.
Fulfilled if spouse had a chance to find out but did not.
Jurisdiction and Venue
Jurisdiction is proper in district court. At least one party must be domiciled in NC and have lived there for six months. This cannot be waived.
Exception: Military personnel temporarily stationed in NC for at least six months have PJ.
Venue is proper in any county where either spouse lives.
Marriage Requirements
- License
- Ceremony (NO common law marriage in NC)
- Substantive Requirements, i.e. capacity, age, kinship, gender.
Recognition of Foreign Marriages
Generally, NC will recognize marriages validly entered into in other states (including comlaw).
Exception: Violates PubPol (i.e. gay marriage)
Breach of Promise to Marry
This is a recognized action in NC! Jilted fiancee can recover financial losses suffered in reliance and can also get punitive damages. Look out!
Engagement ring will likely go back to donee as a “conditional gift.”
Alienation of Affections
- Marriage w/ love and affection
- destroyed
- by the wrongful acts of 3rd party
Note: Can be before OR after a separation!
3 Year SOL from date affection destroyed.
Criminal Conversation
- Marriage
- Sex (pre OR post separation)
3 Year SOL runs from date of discovery
Annulment of Marriage
Invalidates a marriage that is void/voidable because parties fail to fulfill all legal requirements for marriage or b/c there was a legal impediment at the time the marriage was supposed to be entered into.
Divorce from Bed & Board
Not actual divorce - allows parties to live separately by court ordering one to move out of marital home.
Requires finding of fault one one of six statutory grounds:
- Abandonment
- Cruelty
- Indignities
- Alcoholism/Addiction
- Adultery
Plaintiff-spouse must also be without fault, similar to doctrine of clean hands!
Defenses for B&B Divorce
- Recrimination (unclean hands)
- Collusion (false assertion)
- Connivance (helped make it happen/encouraged)
- Condonation (knowing forgiveness)
Note: Cruelty cannot be forgiven
Note: Condonation can be conditional (i.e. don’t do it again)
Post-Separation Support
The spouse who files must be a dependent spouse who is in need of support in order to live.
The court will consider the dependent spouse’s resources and needs and the other spouse’s ability to pay, along with other factors including:
- standard of living parties enjoyed while living together
- each party’s income and earning potential
- debt obligations, including existing financial support obligations imposed by law
- reasonable living expenses
NO PSS if marital misconduct, unless BOTH parties engaged…court then may weigh and decide.
Duration of Post Separation Support
Lasts until:
- Date decreed by court
- Order for absolute divorce (may change to alimony)
- Cohabitation with another (sharing responsibilities)
Grounds for Absolute Divorce
Fault NOT necessary in NC!
- Parties separated 3+ years due to incurable insanity of one spouse; or
- continuous separation for one year; moving party must have intent to live apart and maintain a separate residence; can’t resume cohabitation!
Defenses in No Fault Divorce
Reconciliation will prevent divorce if parties move back in together, holding themselves out as husband/wife, even without sex (TOTC test)
Effects:
- Restart statutory one year wait period for divorce
- Void any unexecuted portions of separation agreement
- change date for accumulation/valuation of marital property
Note: Mere isolated sex acts do NOT toll the one year statutory period!
Equitable Distribution
Three step process:
- Figure out what parties own that is subject to ED (i.e. what is marital, separate, divisible property)
- Determine net value subject to ED
- Determine what distribution is equitable
Separate Property
property that belongs to one spouse or the other; real or personal property (tangible or intangible) acquired by spouse before marriage or after date of separation; could also be acquired by devise, descent, or gift.
Marital Property
(a) all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned; and
(b) all rights that are vested or non-vested in pensions, retirement, and other forms of deferred compensation
“Source of Funds” Doctrine
NC recognizes “dual nature” property that can be partially marital and partially separate. For certain kinds of property, acquisition is ongoing, so property is acquired as it is paid for.
Example: W has $20k equity in house she purchased prior to marriage. After marriage, $20k more paid on mortgage. Of the $40k equity, half is marital and half is separate.
