Family Law Case Update

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Family Law Case Update

• Cheryl Howell
• June 2006

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Contracts - Review

• Premarital agreements
• Postnuptial agreements
• Separation Agreements

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Premarital agreements

• Uniform Premarital Agreements Act
• GS 52B
• No consideration required
• Can contract re alimony

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Postnuptial agreements

• GS 52-10(a)
• Contracts valid unless violate public policy
• GS 50-20(d)
• Agreements re property division allowed before,
  during or after marriage
• No alimony agreement unless separated

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Separation Agreements

• Executed while separated or when separation
  imminent
• Can resolve all issues
• Executory provisions voided by reconciliation

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Agreements

• Dawbarn v. Dawbarn, COA Feb. 2006
• Postnuptial agreement
• Violates public policy?
• Cf. Williams, 120 NC App 707 (1995)
• Cf. Matthews, 2 NC App 143 (1968)

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Dawbarn

• Fraud, duress, undue influence
• 3 year statute of limitation
• Unconscionability
• Need procedural AND substantive
• Breach of fiduciary duty

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Agreements

• Kornegay v. Robinson, COA Feb. 2006
• Premarital agreement
• GS 52B
• Must be entered voluntarily
• Disclosure required - GS 52B-7

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Declaratory Judgment

• Agreement incorporated into divorce
• Declaratory Judgment (GS 1-254) to interpret?
• Fucito v. Francis, COA, Dec. 2005

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Classification

• H inherits real property
• H transfers title to H W as tenants by the
  entirety
• W testifies no gift
• H testifies no gift
• Gift?

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Distributive awards

• Presumption that in-kind is equitable has been
  rebutted
• Identify assets to pay award, OR
• Identify and consider financial impact of
  liquidating assets or borrowing

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Debt

• Equity line balance 17,738 on date of separation
  (marital debt)
• H pays 4,320 after separation (interest and
  finance charges on equity line)
• How do you account for payments by H?

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Divisible Property

• GS 50-20(b)(4)(d) Divisible property includes
• Increases and decreases in marital debt and
  finance charges and interest related to marital
  debt
• Before October 11, 2002 - decreases were
  considered distribution factors

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Debt

• W withdraws 7,500 more from equity line after
  separation
• H pays interest and finance charges on that new
  debt
• How do you account for Hs payments?

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Deviation Order

• Guideline amount and
• Reasonable needs of child and
• Ability of each parent to pay and
• Guidelines inadequate/excessive and why, OR
• Guidelines unjust/inappropriate and why AND
• Basis for amount ordered

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Imputing Income

• Voluntarily unemployed or underemployed and
• Capable of providing support and
• Bad faith OR
• Deliberate suppression of income to avoid support

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Child Support

• Stay home mom during first marriage
• Stay home mom during second marriage
• Impute income?
• How much?
• Roberts v. McAllister, COA Nov. 2005

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Custody Order Review

• Order allows Wednesday night visitation
• Judge states Only until kindergarten
• Child starts kindergarten mom stops Wednesday
  night visitation
• Mom in contempt?
• Can judge amend order?

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Custody Order Review

• Joint legal custody to parents
• primary physical to dad
• visitation to mom
• Order approves placement of child with paternal
  grandmother
• Constitutional problems re Price v. Howard ?

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Custody Order Review

• Custody case filed (Chapter 50)
• 50B action filed, 10-day hearing held and order
  entered
• Defendant committed domestic violence
• Custody order entered
• Defendant did not commit domestic violence
• Problem?

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Custody Order Review

• Order awards parents joint legal custody
• primary physical custody to mom
• Order awards mom primary decision making
  authority
• Problem?
• Diehl v. Diehl, COA June 6, 2006