An eviction is a process that allows a landlord to lawfully remove a tenant from the leased premises. In North Carolina, this can be a long and/or tedious process. There are four basic reasons that permit the eviction of a tenant:
When filing for an eviction, as the landlord, it is important to understand that even if the eviction is justified, the tenants can always find some way to defend themselves. Because of this, it is best that the landlord do their research before beginning the eviction process in order to know what is coming their way.
Nonpayment of rent
If a landlord is looking to evict their tenant due to a nonpayment of rent, the landlord must give a 10-day “notice to quit.” This notice to quit is a demand for payment by the landlord. Beginning on the day the notice is brought to the attention of the tenant, he or she has 10 days to pay their rent before the landlord is allowed to follow up with an eviction. The landlord cannot file for eviction until after the 10-day notice has been given and the tenant has failed to comply.
When a tenant remains on the premises after their lease or rental agreement has ended, they are known as a holdover tenant. As a landlord, you are not obligated to renew a lease with your tenant at the end of the current lease. If the landlord does not choose to renew the lease with their tenant, the tenant must then surrender possession of the property at the end of the current lease. Although a landlord has every right to not renew a lease, they are required to provide a termination notice prior to the end of the current lease. The criteria of this termination notice is listed below:
This notice of termination is also called an unconditional notice to quit, which says when the lease expires and states a deadline by which the tenant must vacate. If the tenant does not comply with the above notice, the landlord may proceed with the eviction process.
Violation of Lease
As a landlord, you have the legal right to evict your tenant if you find that they have violated or breached a specific condition of the lease. Such breaches may be that they have a pet even though the lease clearly states that pets are not allowed, or they have damaged property without making any reparations. Any willful or intentional damages made to the property are subject to a misdemeanor in the state of North Carolina. In a situation where a tenant has violated the lease, the landlord has no legal obligations to provide a notice before evicting the tenant. Unless the lease requires notice and an opportunity to cure, the landlord can file eviction papers upon learning of a violation.
Illegal Criminal Activity
For landlords looking to evict their tenant due to illegal criminal activity taking place on the premises, the state of North Carolina has an expedited eviction process.
Defense by Tenants
There are seven main defenses tenants may use to fight an eviction in North Carolina. While some of these defenses only relate to one or two of the reasons for eviction, most of them are applicable to all four reasons to evict a tenant.
Serving Eviction Papers in North Carolina
After providing the tenant with a required notice, the landlord may then file for the eviction process through either the small claims court or the district court. It is important that the summons and the complaint are filed in the county in which the rental property is located. A complaint is a legal document that states the reasons one party seeks legal action against another. A clerk will provide a form titled “complaint in summary ejectment.” When filling out this complaint, the landlord must list all tenants whose names appear on the lease or rental agreement. A summons is a legal document that notifies a defendant (the tenant) that an action has been commenced. The summons will state a date and time on which the tenant should appear at a specified location to answer the complaint.
Once the landlord has filled out all of the necessary paperwork, the county sheriff will serve the tenant with the summons and a copy of the complaint. After receiving these papers, the tenant may do one of two things: vacate the premises or fight the eviction at the eviction hearing. The tenant is not required to appear at the eviction hearing, however, it is highly recommended. If the tenant does not appear in court, it is known as a default judgment, meaning that the landlord automatically wins. After winning the eviction hearing or appeal, the landlord will then file for a “writ of possession,” which allows the landlord to forcibly remove the tenant from the premises. If the tenant remains on the property, the county sheriff will accompany the landlord and padlock the premises within seven days of receiving the writ of possession.
1) How long do we have to be separated before we can file for divorce in NC?
Under North Carolina General Statute (N.C.G.S.) § 50-6 provides that either party may apply for divorce but only “if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six (6) months.”
2) How long will divorce process take once the complaint is filed?
It depends each county in North Carolina is different and has its own local rules and procedures when processing a complaint for absolute divorce. When the plaintiff files a complaint for absolute divorce, a defendant is entitled to 30 days to respond to the lawsuit. A defendant is may ask the Court for additional time in which to respond and in most cases a Court will allow a permit an additional 30 days for the defendant to respond to the complaint. If a defendant fails to respond to the complaint within 30 or 60 days if applicable, the plaintiff is entitled to proceed with their claim for absolute divorce. In Mecklenburg County, unlike some other counties, no court appearance will be required by either party for a Court to enter a judgment of absolute divorce.
3) What factors does the court look at in determining alimony?
Under N.C.G.S. § 50-16.3A(a), “the court shall award alimony to the dependent spouse...upon a finding that the other spouse is the supporting spouse, and that an award of alimony is equitable after considering all relevant factors, including those set out in subsection (b) of this section.”
N.C.G.S. § 50-16.3A(b) “In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including:
(1) The marital misconduct of either of the spouses. [The court will consider all evidence of martial misconduct that has occurred during the marriage and prior to the date of separation.];
(2) The relative earnings and earning capacities of the spouses;
(3) The ages and the physical, mental, and emotional conditions of the spouses;
(4) The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;
(5) The duration of the marriage;
(6) The contribution by one spouse to the education, training, or increased earning power of the other spouse;
(7) The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;
(8) The standard of living of the spouses established during the marriage;
(9) The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;
(10) The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
(11) The property brought to the marriage by either spouse;
(12) The contribution of a spouse as homemaker;
(13) The relative needs of the spouses;
(14) The federal, State, and local tax ramifications of the alimony award;
(15) Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
(16) The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties' marital or divisible property.”
4) What if I am military and live out of state? Can our divorce still be filed in NC?
Yes, as long as one party resides in North Carolina for six months. The divorce will have to be filed in the county the NC resident resides in.
5) Is spousal support available while divorce is pending in court or only after the divorce has become final?
It is up to the court to order that one spouse provide support to the other during the pendency of the divorce action and/or after the divorce has become final. Also, support that is awarded pending the final decree of divorce is not to extend beyond the period necessary for the prosecution of the divorce action.
6) When is considered to be abandonment by spouse?
Abandonment occurs when a spouse intentionally moves out of the martial home with the intent to remain permanently apart without the consent of the other spouse, and without provocation by the other spouse.
7) Is your spouse entitled to alimony if they cheated on you?
No. Under N.C.G.S. § 50-16.3A(a) provides that a spouse that is found dependent by the court is not entitled to alimony if he or she has had sexual relations with another person that is not their spouse at any time prior to the date of separation.
8) What if my spouse does not agree to the divorce, can I still go forward with the divorce?
Yes. You can obtain a divorce decree whether your spouse agrees with it or not, as long as you and your spouse have been separated for one-year and one of you has been a resident of North Carolina for six-months prior to the filing of this divorce action.
9) What are the types of divorce that NC recognizes?
North Carolina is a “no-fault” state which means that neither party has to prove fault of the other in order to file or be granted a divorce decree, you are only required to be separated for one-year and one of the spouses must have resided in NC for six-months prior to filing for divorce. Further, North Carolina recognizes two types of divorces: (1) “absolute divorce” and (2) “divorce from bed and board.”
(1) “Absolute divorce” is like a no-fault divorce, either party can obtain, once you and your spouse have lived separate and apart for one-year.
(2) “Divorce from bed and board” is not technically a divorce but rather a judicially authorized legal separation. There are six grounds for this type of divorce based on injury to the party filing for divorce as provided under N.C.G.S. § 50-7. “The court may grant divorces from the bed and board on application of the party injured…in the following cases if either party: (1) Abandons his or her family, or (2) Maliciously turns on the other out of doors.
(3) By cruel or barbarous treatment endangers the life of the other. In addition, the court may grant the victim of such treatment the remedies available under N.C.G.S. § 50B-1.
(4) Offers such indignities to their spouse as to render the condition his or her condition intolerable and life burdensome.
(5) Becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of the spouse burdensome.
(6) Commits adultery.” [NCGS § 50-7]
10) Does North Carolina recognize common law marriage?
No, North Carolina does not recognize common law marriage. If, however, you moved to North Carolina from a state recognizing common law marriage, you still may need to file for an absolute divorce.
If you need to arrange a consultation with a family law attorney concerning separation and/or divorce, contact Adkins Law. We have locations in Huntersville and Ballantyne for your convenience.
What is the Recapture Rule?
If your alimony payments decrease or end during the first 3 calendar years, you may be subject to the recapture rule. The reasons for a reduction or end of alimony payments that can require a recapture include:
The recapture rule forces the alimony payer, usually the ex-husband, to report as income the alimony payments he previously deducted, which means the ex-wife is entitled to reduce from income the alimony payments she previously received.
When does the Recapture Rule Apply?
The rule applies when the payments decrease or terminate during the first three calendars years post-divorce and:
1.) The total payments made in the third year decrease by $15,000 or more from the payments made in the second year; or
2.) The payments made in the second year and the third year are substantially less than the payments made in the first year.
Recapture Rule & Filing Taxes:
a) Including the recapture amount in your income: If you must include a recaptured amount in income, show it on Form 1040, line 11 (“Alimony received”). Cross out “received” and enter “recapture.” On the dotted line next to the amount, enter your spouse's last name and SSN or ITIN.
b) Deducting the recapture amount: If you can deduct a recaptured amount, show it on Form 1040, line 31a (“Alimony paid”). Cross out “paid” and enter “recapture.” In the space provided, enter your spouse's SSN or ITIN.
Exceptions to the Recapture Rule?
The Recapture Rule does NOT apply to the following:
If you need to speak with a family law attorney in regards to alimony, contact Adkins Law. Adkins Law has offices in Huntersville and Ballantyne for your convenience.
Step 1. Determine which payments you made qualify as alimony.
Payments that are NOT alimony: Not all payments under a divorce or separation instrument are alimony. Alimony does not include:
Requirements for a payment to be alimony:
General Rules for alimony payments:
Step 2. Mark down alimony payments made or received on your taxes:
a) How to Deduct Alimony Paid on your Taxes:
b) How to Report Alimony Received on your Taxes:
For more information go to https://www.irs.gov/publications/p17/ch18.html.
If you would like to speak with a family law attorney in regards to alimony, contact Adkins Law. Adkins Law has offices in Huntersville and Ballantyne for your convenience.
At Adkins Law, we believe in providing top-notch, quality legal services at affordable prices. If you need to speak with an attorney regarding a family law matter, traffic citation or issue, or for your estate planning needs, contact Adkins Law to arrange a consultation. Adkins Law has offices in Huntersville and Ballantyne for your convenience.
Adkins Law PLLC focuses primarily on family law matters such as separation, divorce, equitable distribution, alimony, post-separation support, child custody, and child support. We have locations in Huntersville and Ballantyne for your convenience. Please contact us if you need to arrange a consultation.
Take a look at the December 2014 issue of Huntersville Magazine featuring Adkins Law PLLC.
Adkins Law PLLC is located in Huntersville, North Carolina and primarily serves Mecklenburg County and the Lake Norman area.
If you need to speak with a divorce attorney, traffic attorney, or estate planning attorney, contact Adkins Law PLLC.
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.