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.
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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! Adkins Law specializes in Family Law and is prepared to help you! Contact us today to set up a consultation with one of our attorney's.
1) How long do we have to be separated before we can file for divorce?
You can file for divorce “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 the whole process take once the complaint is filed? It depends. When the plaintiff files a complaint for absolute divorce, a defendant is entitled to 30 days to respond. 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. 3) What if I am in the military and live out of state? Can the divorce still be filed in NC? Yes! As long as there is one party that resides in North Carolina for a minimum of six months. The divorce will have to be filed in the county the resident resides in. 5) Is spousal support available while divorce is pending in court? It is up to the court to order that one spouse provide support to the other during the pending stages of the divorce. 6) When is it considered abandonment by a 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. 7) Is your spouse entitled to alimony if they cheated? No! A spouse that is found dependent by the court is not entitled to alimony if they have 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 move forward with the divorce complaint? You can obtain a divorce decree whether your spouse agrees with it or not. There are just two requirements: you and your spouse have to have been separated for one-year and one of you has to have been a resident of North Carolina for 6-months prior to the filing of the divorce. Adkins Law specializes in Family Law and is prepared to help you with your divorce. We understand you may have more questions before you proceed with a divorce that is why we offer consultations. Give our office a call to schedule your consultation. Adkins Law is committed to being there for you no matter what stage of life you are going through. If you are in need of assistance with Family Law Issues, Estate Planning for your family or even a Traffic Law issue. We are here to help you! Call us today to set up a consultation.
Adkins Law is located in the Lake Norman, Huntersville area, we specialize in Family Law, Estate Planning, and Traffic/DUI. Call us today to set up a consultation.
Adkins Law is here for you this Valentine's Day. Contact us today to set up a consultation with one of our Family Law Attorney's in the Lake Norman and Huntersville area.
The NC Court of Appeals acknowledged that military disability pay cannot be distributed by a court in equitable distribution, It is seen as income that can be considered when the court is looking for a source of payment. In reaching this decision, the court rejected the argument that this rule was changed by the recent decision in Howell v. Howell by the US Supreme Court. Where the Court reiterated that federal law prohibits the distribution of military disability in equitable distribution.
Military Disability Pay Cannot be Distributed in ED The federal Uniformed Services Former Spouses’ Protection Act (USFSPA) authorizes states to treat veterans’ retired pay as property which is divisible upon divorce. Therefore, federal law prohibits the distribution of military disability benefits in equitable distribution proceedings. Military disability pay is the separate property of the veteran. Retirement Can Be Converted to Disability Unless a retired service member qualifies for concurrent pay, a service member cannot receive both disability pay and retirement pay. This means that many service members must waive their retirement pay in order to receive the disability pay. Many disabled service members decide to change their retirement pay to disability pay when they become eligible, because disability pay is not taxed and cannot be distributed in divorce proceedings. A service member can waive retirement for disability at any point after a service member becomes entitled to receive disability pay. If the conversion occurs before a court enters an order for equitable distribution, the court can consider the disability payments as a distributional factor, but the court cannot give dollar-for-dollar “credit” in the distribution to make up for any retirement pay lost because of the conversion. When this conversion occurs, the amount of retirement pay received by the former spouse of the service member generally is reduced. A trial court may not prohibit a service member from converting retirement pay to disability pay in the future. However, North Carolina appellate courts as well as appellate courts in other states have held that federal law does not restrict the ability of a state court to enforce a judgment dividing military retirement pay entered before a service member converted the retirement pay to disability pay. Therefore, amendments to retirement distribution orders made by trial courts to initiate the terms of the court order have been approved. By: Sarah Bennett While I have been known to waste my time with even some of Bravo’s most questionable programming (I’m looking at you, Relationshep), on Monday nights, I really live for Vanderpump Rules (“VPR” for all the insiders). Last week, Bravo aired the 101st episode of VPR: “Sex, Lies and Audiotape.” The gist of the episode was that our anti-hero, Jax, recently confessed to his girlfriend, Brittany, that he slept with Faith, another co-worker. While Jax contends that his episode of unfaithfulness (pun intended) was a one-time slip-up and that he truly loves Brittany, Faith claims otherwise. In fact, Faith shares with the rest of their friends that she possesses an audio recording of Jax stating that he’s no longer sexually attracted to Brittany and that he never intends to marry her (Jax and Brittany’s path towards the altar – and Brittany’s desire to expedite that journey – is a major topic on both VPR and its spin-off, Vanderpump Rules: Jax and Brittany Take Kentucky, which I have also shamelessly watched).
If you are still reading this post, you may be wondering what my personal interest in the questionably authentic relationships of servers at a Southern Californian restaurant has to do with family law in North Carolina. The answer: wiretapping laws! Just about weekly, Chris or I consult with a client who wants to know whether a secret recording he or she made of their spouse (or some other individual) can be used in court. As with many questions about family law, the answer is, “it depends.” For purposes of state wiretapping laws, North Carolina is a one-party consent state. What that means, generally, is that it does not violate state law for you to record an in-person or telephone conversation between yourself and another person (so long as everybody is in North Carolina when the recording is made). On the other hand, it would violate our state’s laws for you to secretly record a conversation between your spouse and a third person when neither your spouse nor that third person know that they are being recorded. So let’s think about it in terms of VPR: Faith, unbeknownst to Jax, recorded a private conversation between Jax and herself. If this had all occurred in North Carolina, Faith would face no state criminal or civil liability and the court would likely admit the recording as evidence if Faith and Jax were later involved in a lawsuit. However, let’s imagine if the situation were a little different; for instance, let’s say that Brittany, suspicious that Jax may be cheating, wanted to know what Faith and Jax were saying and doing behind Brittany’s back. So, Brittany decided to “bug” Jax for the purpose of secretly recording Faith and Jax’s private conversations without either Jax or Faith knowing about the recording or giving Brittany permission to do so. If all of these actions occurred in North Carolina, this would be problematic for Brittany – not only would Brittany’s recording be inadmissible in any kind of legal proceeding, but she could also be facing civil liability or even felony wiretapping charges. This “bugging” hypothetical is akin to when a person secretly records their spouse’s conversation with a possible paramour or a child. Absent one of the recorded parties giving their consent to the recording, generally, this is not permissible in North Carolina (there is, however, a good faith exception known as vicarious consent in certain circumstances when one is recording a child). While I am not admitted to practice law in California, a cursory Google searched revealed that California, where VPR is filmed, is a two-party consent state. That means that in California and any of the other eleven two-party consent states, a person who wants to record a conversation needs the permission of all parties to the conversation prior to making the recording. I would imagine this could potentially mean legal trouble for Faith if she did not let Jax know that she was recording him; this might also provide some insight into why Bravo opted not to air the contents of the actual recording, but instead filmed the Bravolebrities’ reactions to hearing the recording. Returning to the law in our state, there are some additional exceptions to North Carolina wiretapping laws. For instance, cameras can be used in public places (such as streets, hotel lobbies, parks, etc.) to record the area. This is not considered illegal wiretapping because an individual has no reasonable expectation of privacy in these public areas. Obviously, this does not apply to “upskirt” cameras or other criminal recording methods – but there can be another blog post (and probably another reality TV show) in which we can examine those issues. Outside of the family law context, there are additional, legitimate scenarios where one may want to record a conversation, such as a performance review at work or an encounter with a police officer. Clearly, the laws in North Carolina regarding wiretapping are complicated. I strongly suggest that anybody thinking of making an audio or video recording read the governing North Carolina law (N.C.G.S. § 15A-287) and consult an experienced attorney for advice on the issue. In the meantime, happy reality television-watching! Below is the process of filing for a restraining order also known as a Domestic Violence Protective Order or a Civil No-Contact Order.
1. Go to the courthouse: Go to the office of the clerk of civil court or the magistrate’s office. Tell them you need to file for a restraining order, protective order, DVPO or Civil No-Contact Order. They should make sure you get the forms you need. 2. Fill out the complaint in detail: (Do not sign it until you are before a notary or clerk of court) Just remember: you are the plaintiff and the abuser is the defendant. When filing out the paperwork be sure to provide a brief but complete summary of the most recent abuse you have suffered make sure to use specifics and details. Provide the dates that the incident(s) occurred. The key is to give a clear picture of the abuse to the judge who will decide your case. You also want the judge to know what relief you are seeking. 3. Fill out the summons: In addition to being served the complaint, your abuser will need to be served summons to appear in court. Try to include the abuser’s name, address and other contact information in the paperwork, if known. The sheriff’s office will serve the complaint and summons on the abuser. The sheriff’s office also will serve the notice of hearing and a copy of the temporary protective order. You can help the sheriff’s office by filling out a form that identifies your abuser. This identification can include: (Physical characteristics (height, weight, hair color, eye color),Driver’s license number, Social Security number, and/or Employment address) You will also need to list your name and a safe mailing address and phone number. Because the sheriff serves the abuser, you do not need to have contact with him/her. If the sheriff’s office cannot serve your abuser on time, your hearing will be rescheduled. 4. Seek a temporary protective order: At the time you fill out the complaint and summons, you can also seek an ex parte/temporary protective order. This means that the abuser does not need to be present for a hearing. You can request it by checking a box on your complaint form. Then you go before a judge and explain why you or your children are in immediate danger and why this order is needed. This is an emergency order. Once it is granted, it takes effect immediately and typically lasts 10 days (which just the right amount of time for you to pursue a permanent order). Keep this order with you at all times. Leave copies with your employer, your child’s school or daycare, and everywhere else you or your children can be found during a typical day. 5. Attend the hearing: When you file the complaint/summons, you will be given a date and time for the hearing on your order. Your abuser will receive a notice of the hearing with this information. You must attend the hearing. Your abuser has a right to attend as well. If the abuser does not attend, the court may proceed or elect to reschedule the hearing. You should have an attorney representing you at this hearing. At the hearing, you will need to show the court that the abuser has committed an act of domestic violence, stalking or nonconsensual sexual conduct. If the court finds that this has occurred, the court must grant the order If you are in need of representation for your hearing, Adkins Law can help you. Christopher Adkins and Sarah Bennett are attorney's in the Lake Norman area that specialize in Family Law and can help you. Call our office today to set up a consultation with one of our attorney's. |
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