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.
Domestic violence is attempting to cause or intentionally causing bodily injury or placing the victim in fear of imminent serious bodily injury. Continued harassment can constitute domestic violence if it causes substantial emotional distress. There needs to be a current or former relationship between the victim and abuser such as spouses, parent / child, household members, or boyfriend / girlfriend.
You have to file a complaint (lawsuit) asking for a divorce. You cannot file a divorce complaint until after you and you spouse have been separated for one year. You have to serve your spouse with the complaint. Service is usually accomplished by certified mail or Sheriff. Then you will need a hearing in front of a judge. You may or may not have to be present at this hearing depending on what county you file in, and whether you are represented by an attorney. The judge has to enter a Judgment declaring you are divorced. You are not divorced until the judge signs a Judgment and the clerk file stamps it.
Who will inherit your assets if you die without a will? Without an estate plan, your assets will pass to heirs the laws of North Carolina dictate. With an estate plan, you decide who gets your assets, when, and how they receive them. Plus, you avoid the expense of lawyers and the government for having to sort out the mess of not having an estate plan.
A living trust, sometimes call a revocable trust, is a written legal document through which your assets are placed into a trust for your benefit during your lifetime.
Why Do I Want This?
In the State of North Carolina, a living trust is a great estate planning tool that allows you to have your assets owned by your trust during your lifetime and distributed after your death, or while you are still living. This type of trust is very flexible and provides you with the capability to make changes as you choose. A living trust will keep your assets from having to go through probate. Probate is the court process in which a will is verified and carried out. This process can take months to accomplish and cost copious amounts of fees. Also, having the ability to bypass probate means that your assets can be distributed immediately after your death, rather than after the entire probate process.
How Does It Work?
In order to create a living trust in North Carolina, you must complete the trust document and sign it in front of a notary. After completing the trust document, you must then transfer ownership of your assets into the trust for it to be affective. You, the grantor, will be the one in charge of setting up your living trust. When you establish such a trust, your assets will be owned in the name of the trust. In order to gain as much benefit from this trust as possible, it is advised to transfer all of the assets you can into the trust. This trust will be managed during your lifetime by the trustee. More often than not, that trustee is you. Along with the initial trustee, you must name a successor trustee to take over the trust after your passing. The successor trustee will then be in charge of continuing to manage your assets, as well as distributing them to your beneficiaries according to the terms you specified.
A will is a legally binding document that lays out an individual’s after-death plans for his or her property and affairs. It is not required that one has a will, however, if you do not specify what happens to your belongings after you are gone, North Carolina will dispose of your property according to the general rules of inheritance. While you do not necessarily need an attorney while drafting your will, it is highly encouraged in order to reassure you that your will complies with all North Carolina statutes. Creating a will on your own, and having it bring about what you anticipated, can be complicated.
In that state of North Carolina, you must sign your will in the presence of two witnesses. If you are unable to sign your own will, a witness may do it for you. Your witnesses do not have to read the will or know its contents. The law demands that the testator – the person making the will – declares in the presence of their two witnesses that he or she intends to sign the document as a Last Will and Testament. There are no criteria when choosing whom the witnesses are, however, it is preferred that they are two impartial individuals that have no interest in the testator’s estate.
While a valid will does not require any type of seal or notarization, it does allow the testator and witnesses to complete a notarized affidavit at the time the will is signed. A notarized affidavit holds the same legal power as if the parties testified in court under oath. This notarized affidavit will make the will “self-proving,” meaning that when the will is filed after the testator’s death, the court does not have to make a separate inquiry to determine the validity of the signatures of the testator and the witnesses.
North Carolina accepts three different variations of wills. The most traditional will is known as an attested will, which means that the will is typed up as an official document and signed by the testator and two witnesses. The other two formats for a valid will in North Carolina include handwritten and oral wills.
A handwritten will, also referred to as a holographic will, is a valid will in North Carolina as long as the entirety of the will is in your handwriting and is found after your death. A handwritten will is valid without witnesses; however, the testator must still sign it.
A nuncupative will is an oral will made in the presence of at least two witnesses. Majority of States do not recognize oral wills, but North Carolina may if the testator’s death is quickly approaching. North Carolina only permits oral wills for the distribution of personal property – real estate can only be disposed of by an attested or holographic will.
What is a Security Deposit?
By definition, a security deposit is a sum of money given to the landlord to ensure that rent will be paid and other responsibilities of the lease performed. Such responsibilities include: paying for damages to the premises caused by the tenant, covering any unpaid bills, and the cost of re-renting the premises after breach by the tenant. The laws surrounding security deposits vary from state to state. Landlords must follow state law when handling tenant’s security deposit, which means using it only for certain expenses and returning it tenants in a timely manner.
North Carolina Law
North Carolina requires that security deposits from the tenant in residential dwelling units be deposited in a trust account with a licensed and federally insured depository institution lawfully doing business in this state. Security deposits from the tenant may be held in a trust outside of North Carolina only if the landlord provides the tenant with adequate bond in the amount of said deposits. Landlords or their agents are required to notify tenants within thirty days after the beginning of the lease term of the name and address of the bank or institution where their deposit is currently located or the name of the insurance company providing the bond.
When Can a Landlord Withhold Security Deposits?
As a tenant and as a landlord, it is important to be privy to landlord’s obligations to security deposit guidelines. Below is a list of scenarios detailing when a landlord is prohibited from keeping security deposits and when he must return them.
Remedies for Getting Deposits Back
A tenant is allowed to institute a civil action to require the accounting of and the recovery of balance of a deposit if the landlord (or landlord’s successor) in interest fails to account for and refund the balance of the tenant’s security deposit pursuant to this Article. The failure of a landlord to comply with the deposit, bond, or notice requirements of this Article shall nullify the landlord’s right to retain any part of the tenant’s security deposit as otherwise permitted under G.S. 42-51. Additionally, the tenant may recover damages resulting from noncompliance by the landlord. Such damages include cost for an attorney and court fees.
There are a multitude of things that one can do in order to maximize their chances of having more custody over their child/children. Documentation is key. The best thing you can do in this scenario is to document everything that takes place between you, your child/children, and the other parent.
When discussing child custody, the first thing a judge is going to take notice to is the relationship between each parent and the child. Get involved! Create a stable environment for your child, help your child in school, and get involved in your child’s after school activities. Become the most important actor in your child’s life. The best way to better your chances at getting your ideal custody order is to prove that you are a benefit to your child’s development and well-being.
The State of North Carolina has abolished any bias over either the mother or the father. The courts must keep in mind the best interest of the child in order to determine a custody arrangement. This being said, it is never too late to create a special bond between you and your child/children. It is never too late to step up to the plate and be the responsible parent that your child needs in order to continue to develop and learn.
If you need to speak with a divorce / separation / family law attorney, contact Adkins Law. Adkins Law is located in Huntersville NC and primarily serves Mecklenburg County, Charlotte, and the Lake Norman area.
Assault and battery are intentional torts that are often used interchangeably as if they are one single course of action. While it is true that assault and battery often occur together, they are two different torts with their own common law requirements.
An assault occurs when there is a willful attempt or willful threat made by the defendant to inflict injury upon the plaintiff or a third party. The common law elements of an assault include: an unlawful attempt, with the present ability, to commit a battery. Bodily injury does not have to occur in order for there to be an assault. Assault is simply the infliction of imminent fear on the plaintiff, where the defendant is physically capable of harming the plaintiff or third party.
A battery has occurred when a defendant willfully and unlawfully uses forceful violence or makes offensive contact with a plaintiff or a third party. The common law elements of battery include: the causing of bodily injury, offensive touching, and the intentional causing of harm to another person.
Although battery is a specific intent crime, the defendant does not have the authority to determine whether or not their actions are considered a battery. In other words, it is irrelevant whether or not the defendant considered his actions to be harmful or offensive. Even if the defendant hits the plaintiff as part of a practical joke that the defendant considers to be harmless, a battery has nonetheless occurred if the court considers the contact to have been harmful or offensive.
Consent is often used as a common defense to battery. Plaintiffs who consent to batteries prior to their occurrence, have a lesser chance of their accusations prevailing in court. The plaintiff’s consent to battery must be given without coercion. In addition to freely given consent, the law assumes that people give implied consent to ordinary and customary batteries that occur commonly throughout everyday life. For instance, a plaintiff who attempts to sue a defendant for battery after the defendant bumps into him in a crowded facility would have little chance of winning the suit. In this case, the court will hold that the plaintiff gave implied consent for the battery to occur.