Undeniably, many families in the US experience serious domestic problems that often necessitate legal interventions. Just like other states of the US, North Carolina (NC) too has its unique laws, under the North Carolina General Statutes (NCGS), that govern all the family matters and that are applicable across its respective regions including Mecklenburg County and all the regions within such counties such as Cornelius, Davidson, and Huntersville in Mecklenburg County. As such, it is crucial for all persons residing within NC, particularly in Mecklenburg County to know the fundamentals of family law in NC likely to affect them such as separation and divorce, alimony, child support, and child custody.
Noteworthy, separation and divorce (NCGS § 50) are two different concepts under North Carolina’s family law statutes. A legal separation does not end one’s marriage. Instead, a legal separation lets the parties remain married but live separately. Marital misconduct may come into play here if a party wants to file an action for a forced legal separation. However, for an action for a forced legal separation (divorce from bed and board) to succeed, the complainant must provide evidence establishing that the spouse was at fault including cruelty, adultery, and indignities, etc.
Significantly, although one can legally separate at whatever time, the parties must have been physically separated for a minimum period of one (1) year to succeed in a no-fault divorce. As such, one must meet the legal definition of “separation” to file a divorce case. Merely living in different rooms of the same house or living in separate houses but maintaining the appearance of a relationship does not qualify as a legal separation under the state’s law. If the couple reconciles, the separation period terminates. Additionally, another option other than separation exists, though rarely pursued. Here, the law allows a partner to file for divorce after being lawfully separated for three (3) years and believes that the other partner suffers from untreatable lunacy.
Alimony, child support, and child custody are also NC family law issues. According to NCGS § 50-16.3A, alimony is the act of paying for the upkeep and maintenance of a partner, either through a lump-sum or on an ongoing basis provided by the supporting spouse to the dependent spouse. In Mecklenburg County, forinstance, the general rule is that a dependent spouse is the one earning less income, though the NCGS contains sixteen factors (NCGS § 50-16.3A) that guide the court in making such a determination. When it comes to child custody in NC, the most common reference usually made is “the best interest of the child.” Here, the judge (not a jury) hears the evidence presented before the court and decides how the parents, either jointly or individually, will share time with the children and make decisions impacting the lives of the children.
Often, the court appoints joint physical custody of the children to the parents. Sometimes the court will award one parent as having main physical custody while the other having ancillary physical custody accompanied with a visitation schedule. One parent is usually ordered to pay the other parent child support. Such support is usually assessed using the North Carolina Child Support Guidelines, especially if the combined yearly income of the two prior to taxation amounts to $300,00.00 or less (though also dependent on the custodial schedule), and such a support lasts until the child turns 18 years and graduates high school, or the child is lawfully emancipated. If you need to speak with an experienced family law attorney, contact Adkins Law.
By: Jacqueline Keenan
How was custody established?
The first step in changing child custody is knowing how it was established. If you and your ex are working off of a separation agreement or something that you decided outside of court, then one person needs to request the change. This should be done in writing, but because it is not a court order, it is up to the other party to decide whether or not they are willing to make a change. If that fails, then it may be time to bring the issue to court and have it put in a court order.
If custody is determined through a court order, then the decision to make a change to a custody arrangement rests with the judge. The judge will decide if there is a substantial and material change in circumstances, and if so they may modify the order.
Substantial and Material Change
In determining child custody, the goal of the court is always to look out for the best interest of the child, regardless of what the parents may want. So, when a judge is asked to change an order that has already established what serves the best interest of the child, they will need a very good reason. Because of this, the judge will look at what has changed since the original order was written. If they find a change that is both substantial and material, then they may be persuaded to make a change.
Substantial and material change can include one parent losing a job or moving out of state. A new marriage or relationship that is having an effect on a child’s life may also be considered.
Modifying child custody can be a complicated process. If you are interested in making a change to your custody agreement or order, contact Adkins Law to set up a consultation and decide your next steps.
When a married couple dies, they are able to exempt a certain amount of their estate from taxes. Portability allows the first spouse who dies to transfer their unused estate tax applicable exclusion to the other, living, spouse. This amount can then be used for their gift or estate tax purposes when the second spouse dies. The exemption amount changes every year due to inflation.
The best way to understand this is as follows:
Margaret and John are a married couple. When Margaret dies in 2011, the executor of her estate makes the portability election. Assume that Margret’s “deceased spousal unused exclusion” (DSUE) amount is $4 million. In 2013, the basic applicable exclusion amount equals $5.25 million, and John dies. Now the applicable amount available to John’s estate equals $9.25 million because he can add the $4 million that was not used by his spouse to his maximum amount.
This is calculated by adding the surviving spouse’s (John) basic applicable exclusion amount and the aggregate DSUE amount from Margaret.
Why does it matter?
The effect of portability is it potentially doubles the estate tax exemption available to the surviving spouse to use for lifetime gifts or at the second death. Because estates are taxed at such a high rate, preserving portability means that the heirs will ultimately be able to receive more money.
Even if your estate is not very large, preserving portability can protect your assets in the future if the surviving spouse experiences a windfall (like winning the lottery!) and is an option that can and should be explored by everyone, even if it ends up not being the best strategy for your estate.
How to utilize portability?
Portability is not automatic, and it is very important that the executor follow the proper protocol. In order to utilize portability, there are several requirements that must be met:
First, an election must be made by the executor of the estate. If an election is not made, portability is forfeited.
Second, the election must be timely filed on or before nine months after the deceased spouse’s date of death. If more time is needed, an automatic six- month extension of time to file the return can be requested through Form 4768. If the deadline is missed and there is no extension, then the couple will not have the benefit of estate tax portability, and this may result in thousands of dollars of unnecessary and avoidable estate taxes.
Third, a complete and properly prepared Form 706 must be filed.
If you are interested in learning more about the portability exception and how it applies to your estate, contact Adkins Law to set up a consult today!
Happy 4th of July from Adkins Law!
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I’m the Father?!
For a couple who has been trying to get pregnant, the sentence “you’re the father” will often be received as exciting news. But for all of the frat boys, famous rappers, and casual daters of the world, this may be your worst nightmare. So, what do you do if a paternity action is brought against you?
What is a paternity action?
A paternity action is a legal suit that is used to establish the paternity of a child that can be brought by the mother or a state agency if the mother is receiving state financial assistance. In this proceeding, the judge will hear evidence as to why the mother believes that you are the father of her child and will often order genetic testing. This testing will be done by a laboratory chosen by the court. If the genetic match is 97% or higher, you are the father!
What does it mean to be the legal father?
Establishing legal paternity comes with several obligations and benefits, including paying child support, and having the right to visit with your child.
What should my next steps be?
If a paternity action is brought against you, you will have the opportunity to file an answer with the court stating why you believe you are not the father. You should contact Adkins Law ASAP to set up a consult to help you through this process.
In preparing answers to requests for admissions, the answers must be made in good faith and answer the request in detail. Answers that do not accomplish this may be stricken at the court’s discretion and sanctions applied. The following excerpted Rules and cases support the above conclusion. If the defendant in your case offered only blanket denials, and you are able to provide documentation showing that his answers were not complete or made in good faith, it is likely that a judge would be amenable to striking the answers, thus making them admissions, and imposing sanctions such as attorney’s fees. If the opposing party has a good faith belief that their denials were correct, then they will likely not be sanctioned. Of particular interest in Rule 37 (c), which explains the grounds under which a judge may choose to sanction for failure to admit.
NC Rules of Civil Procedure
If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder.
If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.
N.C. Gen. Stat. Ann. 1A-1, 36
Rule 37 (c)
Expenses on failure to admit.--If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay to him or her the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that (i) the request was held objectionable pursuant to Rule 36(a), or (ii) the admission sought was of no substantial importance, or (iii) the party failing to admit had reasonable ground to believe that he or she might prevail on the matter, or (iv) there was other good reason for the failure to admit.
N.C. Gen. Stat. Ann. 1A-1, 37
Rule 8 (c)
(b) Defenses; form of denials. -- A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part of or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, he may make his denials as specific denials of designated averments or paragraphs, or he may generally deny all the averments except such designated averments or paragraphs as he expressly admits; but, when he does so intend to controvert all its averments, he may do so by general denial subject to the obligations set forth in Rule 11.
N.C. Gen. Stat. Ann. 1A-1, 8
Wachovia Bank of N. Carolina, N.A. v. Bob Dunn Jaguar, Inc., 117 N.C. App. 165, 174, 450 S.E.2d 527, 533 (1994)
In North Carolina, when a married man’s wife has a child, he is automatically presumed to be the father, and has all of the same rights to custody as the mother. When a couple is unmarried, the situation becomes a little tricky, and requires that the father establishes his paternity.
Paternity can be established in several ways, the first of which is an Affidavit of Paternity. This is a legal document signed at or near the time of the child’s birth in the presence of a witness, affirming that you are the father of the child.
If an Affidavit of Paternity is not signed, a Paternity Action can be filed with the court. In this case, the judge will often order genetic testing. If you match at 97% or higher you are legally considered the father. A paternity action can be filed by either parent or by Child Support Services if the mother is supported by the state and needs support payments.
Once you have established legal paternity, you have the same rights to pursue visitation as any other father! If you have questions regarding establishing paternity or visitation, contact Adkins Law for more information.
Imagine this—your spouse is in the shower and you notice they’re getting a lot of text messages. You flip over the phone, and see their inbox is full of explicit texts and pictures going back and forth between your spouse and a coworker. You’ve had your suspicion of infidelity, but now you have proof! What do you do next?
Before you do anything else, you should contact Adkins Law and set up a consult about your situation. In North Carolina, marital misconduct is a big deal. It can be used as the basis for a fault-based divorce, in determining alimony, and in so called heart balm torts like criminal conversation or alienation of affection suits. Unfortunately, those incriminating texts may not be enough to prove infidelity on their own.
“But what do you mean this isn’t enough?!”, you’re surely asking. This is a frustrating side effect of new technology coming into the courts. While these text messages may be very explicit and constitute cheating in your mind, absent proof that there was inclination and opportunity to have actual, physical sexual conduct, it simply is not enough.
This is not the end, however. These text messages may be very helpful in bolstering your claim of infidelity. For example, if you know that your spouse and their coworker went on a “work trip” together and shared a room, you can likely make the case that they had both inclination and opportunity to engage in a sexual relationship, and those text messages only make it more likely that they did. Text messages may also detail an encounter that occurred between the parties that can be used to show that a sexual relationship is ongoing or to show that third party driving a wedge into the marriage.
Remember, text messages, emails, phone records and the like can all be used as supporting evidence, but it is important that they are collected correctly and authenticated to be used in court.
If you are interested in pursuing a divorce based on infidelity or have any questions about how to correctly preserve those text messages, contact Adkins Law today to set up a consult.
By: Jacqueline Keenan
Unlike a divorce, which is the end of a marriage between two individuals, an annulment declares that a marriage never existed. This is a rare procedure and has very narrow requirements in North Carolina.
Requirements for Annulment in North Carolina
In order to procure an annulment, it must be shown that the marriage is void or voidable. The only situations in which an annulment can be granted are:
All of the other factors are “voidable”, meaning that there is a problem with the legality of the marriage that can lead to the marriage being erased if an annulment is procured. Because these marriages are not immediately void, they may be ratified by the conduct of the parties—meaning if you continue to live together or have children together, you may not be able to seek an annulment. If an annulment is not possible, then it is time to consider a divorce.
I think I qualify for an annulment. Now what?
Contact Adkins Law! We are happy to help you determine if you are in fact eligible for an annulment, and what your next steps should be!
by: Jacqueline Keenan
Do you feel that you are being threatened?
In North Carolina, it is illegal to try to stop a witness from testifying through threats or intimidation. Intimidation under this law can include threats of bodily harm or violence, cursing, vulgarity, or threatening language given the context of the statements as a whole.
These statements can be explicit, like “if you testify I’m going to break your arm,” or can contain language that implies a threat, like “I’ll give you a taste of your own medicine”, or “I’ll make you regret this”.
Threats made against a witness are a Class G Felony. In North Carolina, a Class G Felony alone can lead to a sentence of 8-31 months in prison. This is a serious crime!
Who is affected by this law?
The witness intimidation law protects any person who has been “summoned” or is “acting as a witness”.
It punishes any person who threatens, intimidates, attempts to intimidate, or prevents the attendance of a witness from any North Carolina state court.
The law also pertains to defendants in a criminal proceeding who threaten a witness in their case with the assertion or denial of parental rights.
What to do if you’re being threatened
If you are a witness and feel you are being threatened, it is important that you report the threat to the police or an attorney on the case, so they can take appropriate action.
If you’re interested in more information about witness intimidation, contact Adkins Law!