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.
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.
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.
What constitutes marital misconduct in North Carolina and why does it matter? Several things may constitute marital misconduct in North Carolina, including illicit sexual behavior, abandonment, cruel or barbarous treatment, or excessive use of alcohol or drugs. This is important because marital misconduct may guarantee or bar alimony.
In North Carolina, alimony may be awarded when there is a dependent / supporting relationship. This means that one spouse, the dependent spouse, relies upon the income of the supporting spouse to maintain his or her lifestyle. If the dependent spouse commits marital misconduct during the period of marriage, prior to separation, the dependent spouse is barred from alimony. On the other hand, if the supporting spouse commits marital misconduct during the period of marriage, prior to separation, the dependent spouse is guaranteed alimony.
If you need to speak with a family lawyer in Huntersville NC concerning marital misconduct or alimony, contact Adkins Law. Adkins Law is located in Huntersville NC and primarily serves the Lake Norman area.
North Carolina General Statute 50-16.1A defines marital misconduct. The relevant portion of the statute has been included below:
N.C.G.S. § 50-16.1A
"Marital misconduct" means any of the following acts that occur during the marriage and prior to or on the date of separation:
a. Illicit sexual behavior. For the purpose of this section, illicit sexual behavior means acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.1(4), voluntarily engaged in by a spouse with someone other than the other spouse;
b. Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought;
c. Abandonment of the other spouse;
d. Malicious turning out-of-doors of the other spouse;
e. Cruel or barbarous treatment endangering the life of the other spouse;
f. Indignities rendering the condition of the other spouse intolerable and life burdensome;
g. Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets;
h. Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome;
i. Willful failure to provide necessary subsistence according to one's means and condition so as to render the condition of the other spouse intolerable and life burdensome.
Infidelity is one of the leading causes of divorce. In most cases, when a spouse cheats the damage has been done and the relationship cannot be healed. Before you consider divorce, however, especially if there are children involved, I highly recommend that you make an attempt at marriage counseling. Marriage counseling may or may not work, but at least you made an attempt at preserving the relationship.
From a legal perspective, infidelity may have a big impact on a divorce. Primarily this comes into play when determining alimony. In North Carolina, alimony may be awarded when there is a dependent / supporting relationship. This basically means that one spouse is dependent on the other spouse’s income to maintain a certain standard of living. If there is a dependent / supporting relationship and the dependent spouse has cheated, the dependent spouse is barred from alimony. If, however, the supporting spouse has cheated, the dependent spouse is virtually guaranteed alimony.
Infidelity also comes into play if an injured spouse is considering a heart balm action. In North Carolina, heart balm actions are designed to protect the sanctity of marriage and the family unit. An injured spouse may bring a lawsuit against the third party that either alienated their relationship with their spouse, or had sexual relations with their spouse. In other words, if a spouse cheats, the injured spouse may sue the person who had sex with the spouse. There are several limitations to these types of suits, however, including the fact that the actions must have occurred before the separation.
If you believe your spouse has cheated on you and you are considering divorce or legal action, please contact Adkins Law to speak to a divorce attorney. Adkins Law is located in Huntersville and primarily serves Mecklenburg County and the Lake Norman area.