The termination of alimony largely depends on the terms set forth regarding duration, and whether the alimony award is put in an unincorporated separation agreement (contract) or a court order (judgment, consent order, or incorporated separation agreement).
Alimony that is provided for in a court order, whether this is awarded in an order pursuant to trial, a consent order, or a separation agreement that has been approved by the court and incorporated into a divorce decree or other order is court ordered alimony. Thus even if you agree to alimony in a consensual, contractual separation agreement, if that separation agreement is later incorporated and made part of a divorce decree, it transforms from a contract to an order. Court ordered alimony, regardless of the terms of the separation agreement, terminates statutorily upon the death of either the supporting or the dependent spouse, and also upon the remarriage or cohabitation of the dependent spouse. N.C.G.S. 50-16.9(b). So, when there is an order for alimony in place, alimony terminates upon (1) death of either spouse, (2) remarriage of dependent spouse, OR (3) cohabitation of dependent spouse.
Cohabitation is statutorily defined as … “cohabitation means the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship. Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.” To determine whether a couple has voluntarily assumed the rights, duties, and obligations of married people, the trial court must consider the totality of the circumstances. The primary policy in making cohabitation, not just remarriage, grounds for termination is the economic impact on the dependent spouse. It would not be fair, in other words, for a dependent spouse to be in and continue in a relationship where he or she may enjoy an economic impact from the relationship (i.e. new romantic interest contributes income) without the status of being married. A supporting spouse cannot automatically cease paying alimony due to the dependent spouse’s cohabitation or remarriage without a court order terminating the alimony.
Examples of when a court has found that NO cohabitation exists:
The courts seem to hold that parties are cohabitating when they are in a (1) mutually exclusive dating and sexual relationship; (2) consistently, if not exclusively spend overnights together, or have a residence together; (3) hold themselves out in the same ways as a married couple would; (4) go on dates, travel together, keep clothes and toiletries at each other’s homes, and provide care (if applicable) for each other’s children; and (5) mix finances and contribute financially to each other, pay bills and contribute to household expenses together, and maintain joint bank accounts.
When, on the other hand, an unincorporated separation agreement is involved, the terms of termination of alimony provided for in the contract dictate. Thus if no term in the unincorporated separation agreement provides for termination of alimony, it may continue indefinitely. A contractual support obligation of alimony in an unincorporated separation agreement, for example, that provided that alimony should be paid to the dependent spouse to support her while she obtained a college degree continued even after the death of the supporting spouse. The death of the supporting spouse did not end his obligation to support the dependent spouse until she graduated from college and his estate was required to provide the alimony payments to the dependent spouse. See White v. Graham, 72 N.C. App. 436, 325 S.E. 2d 497 (1985).
To contrast against court ordered alimony, while cohabitation will result in the termination of a support order entered by a court, either as the result of a trial or by entry of a consent order, cohabitation will not terminate a support obligation arising from an unincorporated separation agreement unless so specified in the contract. See Jones v. Jones, 144 N.C. App. 595, 548 S.E. 2d 565 (2001).
Unless provided otherwise in a separation agreement, however, reconciliation between parties who remain married may terminate an obligation to pay alimony, even if contracted for in an unincorporated separation agreement. Reconciliation, or the resumption of marital relations, is defined as the voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances. N.C.G.S. 52-10.2. To reconcile, there must typically be substantial objective indicia of cohabitation. Reconciliation did not occur, for example, in a case where the husband and wife spend four hours a day, six days per week together, in the former marital home, having dinner together, visiting with the minor children, and having occasional sex together because the husband and wife maintained separate residences, did not share chores or household responsibilities, did not hold themselves out as husband and wife, did not indicate to others that their problems had been resolved, and did not indicate that they desired to terminate their separation. Fletcher v. Fletcher, 123 N.C. App. 744, 474 S.E. 2d 802 (1996). The Court of Appeals has held, on the other hand, that reconciliation has occurred when the husband and wife lived together for four months following the execution of a separation agreement, had sexual relations, filed a joint tax return, and held themselves out as husband and wife. See Schultz v. Schultz, 107 N.C. App. 366, 420 S.E.2d 186 (1992).
In a nutshell, if alimony is court order, it will terminate upon (1) death of either party, (2) remarriage of dependent spouse, or (3) cohabitation of dependent spouse. If alimony is in an unincorporated separation agreement, it will terminate upon the terms of that contract, if ever; unless the parties remain married and resume marital relations.
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.
There are several different types of Child Custody:
How is Custody Determined?
Court will decide where the child will live and what type of custody will or should be awarded to each parent. If the parents have come to an agreement, the courts will often take that into consideration before making the decision for the family and the child.
If no agreement can be made, then the court will choose based on the “best interests” of the child. The court considers a wide variety of factors to determine the best arrangement for custody of the child.
The factors the courts consider:
Adkins Law can help you understand any and all complexities of your child custody case. Call Adkins Law today for more information and to schedule a consultation.
The health care power of attorney is a document that works in conjunction with a living will. It is a document where you can designate someone to be your representative, in the event you are unable to communicate your decisions about your health care. In the most basic form, a health care power of attorney says, "I want this person to make decisions about my health care if I am unable to do so."
This needs to be a person that you trust to make medical decisions on your behalf if you cannot make them for yourself. Most people choose their spouse, partner, relative, or close friend as their health care agent.
North Carolina requires that your health care agent be (i) at least 18 years of age, and (ii) not being compensated for providing you health care. Choosing this person is an important decision, and you should think carefully about who you want to assume this responsibility. This person may eventually be deciding whether or not life support will be in your best interests.
If you are in need of appointing someone as your healthcare power of attorney, Adkins Law may be able to help. Call today to set up a FREE Estate Planning consultation in our Huntersville office.
Did you know that having a will means probate, and potentially probate court? Without an estate plan, your estate cannot be settled without the delays and court fee costs - plus, your assets will be a matter of public record. With an estate plan, you can avoid the probate process entirely. Not only does this save your family legal costs and attorney fees, it makes the process much easier for your spouse and family.
Would you prefer that your assets stay in your own family? Sure - who wants to give their hard earned money and the assets they have accumulated over their lifetime to any person outside of their family? Without an estate plan, your child's spouse may end up with your money. If your child divorces, half of your assets could potentially go to that in-law spouse. With an estate plan, you can set up a trust that ensures that your assets will stay in your family, and pass down to your grandchildren.
Contempt of court refers to actions that challenge a court’s authority, cast disrespect on a court, or impede the ability of the court to perform its function. Contempt takes two forms: civil contempt and criminal contempt.
The most common form of civil contempt happens when someone fails to adhere to an order from the court, resulting in a violation of the rights of a private party. Usually, the injured party is the one to file an action for civil contempt. For example, failing to pay court ordered child support may lead to punishment for civil contempt. The injured party in this scenario would be the parent who has not yet received the court ordered child support payments.
Civil contempt sanctions are commonly used to coerce such a person into complying with a court order the person has violated. Unlike criminal contempt, which aims to punish the act, civil contempt has one of two goals. The first goal of civil contempt is to reinstate the rights of the party who was wronged by the failure to fulfill the court’s order. The second is to simply move an underlying proceeding along. When either of these goals is met, civil contempt sanctions typically end.
Criminal contempt charges, on the other hand, are punitive. This means that they serve to deter future acts of contempt by punishing the wrongdoer. An individual that has been incarcerated for criminal contempt cannot secure their own release by deciding to comply with the court; however, they are given the same constitutional rights guaranteed to criminal defendants.
Criminal contempt charges become separate charges from the underlying proceeding. Unlike civil contempt sanctions, criminal contempt charges have the potential to continue after the underlying case has been resolved. Criminal contempt charges may occur directly or indirectly. In order for one to occur directly, the act must take place in the presence of the court. In order for one to occur indirectly, the act must take place outside the presence of the court.
Adults who plan their vacations in accordance to their work schedule experience difficulty when attempting to coordinate with their family’s busy activities. This is especially true with adults who share custody of their children with another parent. Parents who take their child across state lines in violation of a custody order can expose themselves to contempt of court charges and, potentially, charges of parental kidnapping.
In some cases, adults share custody of their children under a court order that addresses the issue of out-of-state travel. In the event that the order allows or in does not prohibit traveling across state lines, a parent is permitted to travel with their children from state to state. However, it is imperative that traveling parents look for restrictions on their custody order. A common restriction in such an order is that the traveling parent must receive consent from the other parent to take the kids out of state. Even if the order does not require it, it is best to get the other parent’s consent in writing. Written consent could be helpful in case a dispute arises in the future.
While traveling out of state, keeping the other parent informed of the itinerary can help ease tension. In most cases this is not a requirement. However, if the parent fails to abide by the terms of the court order or written permission of the other parent, the traveling parent could face civil or criminal penalties. A federal or state warrant may also be issued and the parent may face charges under the International Parental Kidnapping Crime Act.
Custody Order Not in Place
In some instances, parents want to travel out of state with their child, but custody is still pending or no order is in place. In this case, it is wise to seek the consent of the other parent or receive court approval. Establishing a record of unilateral actions without consulting the other parent can make a judge believe that that parent will not be able to effectively co-parent, and could potentially lead to modification of an existing custody order.