If you know you are in a dead relationship and are planning to get a divorce, there are a number of things you need to understand and plan for. Under North Carolina law, to get a divorce, you are required to live separate and apart for a year and a day. This separation period must be continuous and requires that the parties live in different residences. Additionally, at least one party must have lived in the state for at least six months prior to filing for the divorce.
Before filing for divorce, however, it is extremely important that the parties have divided up their property and determined any potential alimony. Any claim for equitable distribution, or property division, must be made prior to the divorce being finalized or a court will have no authority to divide the property. The same is true for alimony. If a claim for alimony is not made before a divorce is finalized, no claim for alimony may be made in the future. A court would not have the authority to enter such an order.
For this reason, it is very common for parties to enter into a separation agreement before they are divorced. Most commonly, a separation agreement covers property division and alimony. Separation agreements may also discuss child custody and child support. For most parties, its beneficial to enter into a separation agreement because it saves them money (no drawn out attorney and litigation expenses) and gives them more control over what is in the agreement (the parties determine the terms of the agreement, not a judge).
If you are considering a divorce, it is highly recommended that you seek a consultation with a divorce attorney. Whether you decide to use an attorney or handle your own case, a consultation with a divorce attorney can at least give you information on your rights and what direction you need to take. If you would like to schedule a consultation with a divorce attorney, contact Adkins Law. Adkins Law is located in Huntersville NC and serves Mecklenburg County and the Lake Norman area.
Alimony is protected from discharge through bankruptcy. Divorce decrees and separation agreements are covered by 11 U.S.C. Section 523(a)(15). This section states that these debts are not dischargeable unless:
(A) the debtor does not have the ability to pay such debt from income or property of the debtor not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor and, if the debtor is engaged in a business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business; or
(B) discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse, or child of the debtor.
What does this mean? Fortunately for the dependent spouse, it means that alimony is not wiped out if the supporting spouse declares bankruptcy. Alimony is considered a priority, non-dischargeable debt, which a debtor cannot eliminate by filing for bankruptcy.
Depending on what type of bankruptcy you file, however, may determine whether you are able to enter into a repayment plan for any back-owed alimony. In a Chapter 13 bankruptcy, you may repay your portion of back-owed alimony over a period of three to five years. The dependent spouse will still get the money they are owed, it just may be repaid over a longer period of time. This helps the supporting spouse by giving them a longer period of time to repay their debt so that they may avoid potential jail time.
Occasionally, in separation agreements, the parties agree to label an obligation alimony so that the paying spouse may deduct the payments from his or her taxes. These types of payments are not really alimony and may potentially be discharged through bankruptcy.
If you pay or receive alimony and believe that a potential bankruptcy may impact this, you may want to seek a consultation with an alimony attorney. Adkins Law is located in Huntersville NC and primarily serves Mecklenburg County and the Lake Norman area. Contact Adkins Law to schedule a consultation with a family law attorney.
The NHTSA SFST battery is the standard for driving while impaired field sobriety testing. The SFST battery consists of three tests: (1) the horizontal gaze nystagmus (HGN) test, (2) the walk and turn (WAT) test, and (3) the one leg stand (OLS) test. The WAT and OLS require you to be able to walk, stand, and balance as a normal person would. If you are mobility impaired, you may not be able to complete the WAT and OLS portions of the NHTSA SFST battery.
Historically, DWI police officers have relied exclusively on their observations and the HGN when making a DWI arrest of a mobility impaired person. Recently, however, police officers have been using NASBLA training to conduct a seated field sobriety test for mobility impaired subjects. The NASBLA field sobriety battery is patently different than the NHTSA SFST battery.
The NASBLA field sobriety battery includes the following tests: (1) HGN, (2) finger to nose test, (3) palm pat test, and (4) hand coordination test. The battery is designed to detect boating while impaired (BWI) / boating under the influence (BUI) suspects and all tests are conducted from a seated position. Since the tests are conducted from a seated position, the NASBLA tests are supposedly applicable to detect DWI / DUI suspects.
The problem with applying NASBLA tests to DWIs is that there is no study to prove their validity. In 2008, a study was conducted by NASBLA and the U.S. Coast Guard entitled “Validation of Standardized Field Sobriety Tests For Use in the Marine Environment.” The purpose of the study was to validate SFSTs for BWI / BUI enforcement in the marine environment. Due to balance, stability, and equilibrium issues that boaters may face, law enforcement realized that roadside SFSTs were not adequate to test for BWI. The NASBLA study shows that the NASBLA waterborne SFSTs are more accurate in testing for BWIs than traditional NHTSA roadside SFSTs.
Since the study only focused on BWI enforcement, it was only validated for the marine environment. When a police officer attempts to use a NASBLA test to detect a roadside DWI suspect, that officer is using an unproven testing system. To reiterate, NASBLA tests have only been validated for use in the marine environment and are not proven to be effective to detect DWI suspects. Thus, NASBLA field sobriety tests should hold very little weight when used to prove that a mobility impaired suspect as DWI.
If you were charged with DWI and would like to speak to a DWI attorney, please contact Adkins Law. Adkins Law is located in Huntersville NC and primarily serves Mecklenburg County and the Lake Norman area.