pierceb's version from 2015-07-27 01:03



Question Answer
What act has North Carolina adopted for Premarital Agreements?Uniform Premarital Agreement Act
What are the requirements for a premarital agreement?(1) signed writing (SOF); (2) voluntary; (3) must not be unconscionable when executed; and (4) there must be "fair and reasonable" disclosure of assets and liabilities. Representation of counsel NOT REQUIRED, but is evidence of fairness.
May a premarital agreement waive alimony?Yes, unless disadvantaged spouse will become dependent upon the government (a "public charge")
May a premarital agreement govern child support?Yes, unless support DOES NOT meet the "reasonable needs" of the child.



Question Answer
What is Alienation of Affection? The elements?Tort action against a third party who alienates a spouse. Elements: Plaintiff-spouse must show: (1) genuine love and affection between spouses; (2) love and affection was alienated or destroyed; and (3) causation - defendant's WRONGFUL and MALICIOUS acts CAUSED the loss of love and affection (causation).
What is Criminal Conversation? The elements?Must show (1) valid marriage, and (2) adultery between the defendant and spouse during the marriage (BUT not during POST-SEPARATION). Need clear and convincing evidence of "inclination" and "opportunity."
In Alienation of Affection, what MALICIOUS mean?"Conduct injurious to another" Malice is usually implied from the fact that the defendant's acts were harmful.
What is the Statute of Limitations for these claims?3 YEARS after last (PRE-SEPARATION) act giving rise to the claim.
What is a defense to criminal conversation?Plaintiff's CONSENT to the adultery.



Question Answer
What constitutes a valid marriage in NC?NC requires (1) ceremony and (2) a license. Absence of license will not invalidate marriage.
What constitutes a proper ceremony?(1) Consent of both spouses; (2) both parties must be present; and (3) an ordained or authorized minister must conduct it.
What are the age requirements for NC marriage?(1) 18 years and up; (2) 16-17 - parental consent; (3) 14-15 - court approval (child is pregnant)
What is the Doctrine of Necessaries?One spouse can be obligated for necessary expenses if (a) married and (b) concerns a basic need (e.g., food, shelter, clothes, medical care.) ELEMENTS: (1) services or goods were PROVIDED to spouse; (2) services and goods were NECESSARY for the spouse's well-being; (3) defendant was MARRIED to the spouse at the time; and (4) payment for necessaries has not been PAID:
May creditors recover against non-debtor spouse if separated?Yes, if there is NO ACTUAL KNOWLEDGE of separation.



Question Answer
What are the two types of marriages that may be annulled?(1) Void and (2) voidable
What is a void marriage?Substantive error. Only bigamous marriages are void and are subject to collateral attack by ANY party.
What is the rebuttable presumption of a bigamous marriage?That the second (2nd) marriage if valid.
What is a voidable marriage?Exists when one or both parties were under some kind of impediment that could render the marriage invalid and these marriages are only subject to attack by one of the parties in the marriage.
What is the legal effect of an annulled marriage?Marriage is set aside aS if never existed.
With bigamy, the party asserting that a second marriage is invalid has the burden of proving what?(1) the first marriage did not end by death of the spouse OR (2) the first marriage did not end with divorce.
What support is NOT awarded for after annulment?(1) Permanent alimony NOR (2) equitable distribution. However, post-separation support and attorneys' fees are available.
What are defenses to "voidable" marriage?(1) impediment doesn't exist; (2) ratification (i.e., continuing in relationship AFTER impediment removed); (3) unclean hands; (4) laches; and (5) estoppel (for void marriages too).



Question Answer
What is divorce from Bed and Board?A judicial degree that the parties are "legally separated."
How is jurisdiction determined?The plaintiff or defendant spouse must have been a resident of the state for 6-MONTHS prior to bringing the action.
The grounds for legal separation are fault-based (IDATA), what are they?(I) Offering INDIGNITIES that render life INTOLERABLE; (D) excessive use of alcohol and DRUGS; (A) Abandonment; (T) cruel and barbarous TREATMENT; and (A) Adultery.
What are the defenses to Divorce from Bed and Board (RC3)Defenses: (1) Recrimination (unclean hands); (2) Condonation (forgiveness); (3) Connivance (Encouraging conduct); or (4) Collusion (conspiracy to lie).
What is the legal effect of separation?The parties are NOT DIVORCED, but NOT free to MARRY either.
What will extinguish the cause of action if plaintiff takes affirmative steps?Reconciliation
What remedies are available after legal separation?(1) Post-separation support (PSS); (2) permanent alimony; (3) child custody; (4) child support; and (5) attorney's fees may be available.
What is post-separation support (PSS)?PSS is a court order as a temporary measure to address the need of a dependent spouse for support until alimony is awarded or denied.
When is PSS terminate?(1) When no claim for alimony is pending at the time of entry of judgment of divorce; (2) death of either spouse; (3) remarriage or cohabitation of the recipient spouse.
What are the elements for abandonment?Abandonment (desertion) occurs when: (1) one spouse brings COHABITATION to an END; (2) WITHOUT justification; (3) WITHOUT the CONSENT of the other spouse; and (4) WITHOUT the intent of RENEWING the cohabitation.
What are the requirements to receive Post-Separation Support?Essentially, the same as for alimony. (1) The plaintiff-spouse is dependent and the other spouse is supporting; and (2) an award for PSS is equitable considering all factors, EVEN MARITAL MISCONDUCT.



Question Answer
How is jurisdiction established?Plaintiff or defendant must have resided in the state 6-MONTHS prior to bringing the suit. "Residency" = "Domicile" = (i) physical presence in the state for 6.months AND 82) intent to remain for some indefinite time.
Must NC have jurisdiction to adjudicate financial matters?YES!
Where is venue appropriate?In ANY COUNTY where ANY PARTY resides.
What are the two grounds for "absolute divorce"?(1) One-year separation and (2) incurable insanity
Is reconciliation a defense?Yes. Must be shown through the "totality of the circumstances" to have "resumed marital relations." This restarts the clock and voids separation agreement. Isolated incidents of sexual relations are not sufficient...must be continuous.
What is the legal effect of absolute divorce?Ends ALL RIGHTS arising from the marriage and "not pending" at the time of divorce. Therefore, spouse must claim alimony/equitable distribution before divorce order is entered.
What is "One-Year Separation" claim?Plaintiff must prove (1) residency; (2) marriage; (3) Continuous separation for one-year AND (4) one spouse must have the intent not to resume the marriage.
What is "Incurable Insanity" claim?(1) Continuous separation for three-years as a result of insanity AND (2) proof of insanity (confinement to an institution, adjudication with 2 doctors testifying, OR examination with 4 doctors testifying.)



Question Answer
What are the two economic claims arising from divorce that NC recognizes?(1) Post-separation support (PSS) and (2) Alimony
What is alimony?Alimony is payment for the SUPPORT AND MAINTENANCE of a spouse.
What must a spouse prove to be granted alimony?Plaintiff-spouse must prove (1) he/she is "ACTUALLY AND SUBSTANTIALLY DEPENDENT" on the defendant-spouse for maintenance and support and (2) that an award of alimony is EQUITABLE (fair) considering all factors, including marital misconduct.
What are some factors, aside from income disparity, used to determine the equity of alimony?(1) Marital misconduct by either party; (2) earning capacity of the spouses; (3) custody arrangements; (4) standard of living; and (5) relative needs of the parties.
What is marital misconduct?ANY illicit sexual behavior during course of marriage.
What are the stages of marital misconduct with regard whether to award alimony?(1) If the dependent spouse engages in illicit sexual behavior, alimony is BARRED; (2) If the supporting spouse engaged in illicit sexual behavior, court MUST award alimony, and (3) if both spouses engaged in illicit sexual behavior, alimony is in the court's discretion.
Why might alimony be modified?"SUBSTANTIAL CHANGE IN CIRCUMSTANCES" Often means changes in the financial circumstances of the parties. As long as those changes are related to the needs of the party receiving alimony or the ability of the payor to pay.
How is alimony terminated?(1) Dependent spouse remarries; (2) dependent spouse co-habitates; (3) death of resumption of marital relationship.
Who has authority to modify alimony?Under UIFSA (Uniform Interstate Family Support Act), as adopted by NC, the state that issued the initial alimony order will maintain "CONTINUOUS EXCLUSIVE JURISDICTION" and the substantive law will apply to any modification.
When will modification (alimony or PSS) not be allowed?(1) Payor intentionally decreased his income; (2) payments were "reciprocal consideration" for property settlement; or (3) "changes were contemplated at the time of the original order"



Question Answer
What act governs Equitable Distribution in North Carolina?The Equitable Distribution of Property Act
When must a claim for equitable distribution be filed?AFTER separation, but BEFORE divorce
What must a trial court require of parties before considering ED?Trial courts must require all parties to attend a "MEDIATED SETTLEMENT CONFERENCE" of other settlement procedure unless good cause not to do so.
What are the steps to ED?(1) Identify; (2) Classify; (3) Valuate; and (4) Distribution
Stock Option: if the "pre-separation" labor of one of the spouses earned the right to the stock options, what type of property are they?Marital, if the spouse received the rights to the stock options before separation. (Payment and timing of payment is irrelevant)
Stock Option, if the "pre-separation" labor of one of the spouses earned the right to the stock options, but "he did NOT RECEIVE the rights until AFTER separation, what type of property are they?Divisible property
Post separation debt in form of payment on marital debt is what type of property?Divisible
What is the formula to compute the marital interest of RETIREMENT benefits?Years of MARRIAGE/Years of EMPLOYMENT
Wages earned post-separation are classified asSeparate property
Monthly wages issued (vested) after separation for work done during marriage will be classified asdivisible property
Marital property is valued at the date ofSeparation
Divisible property is valued at the date ofDistribution
What is the STRONG presumption regarding ED in NC?An equal division of the new value of the marital property is strongly presumed to be "IN KIND" (equitable". In fact, an unequal division of property is mandatory unless the court makes specific findings of fact that an unequal division of property is equitable.
Marital or Divisible: "Passive" appreciation or diminution in value of marital and divisible property occurring AFTER separation and BEFORE distribution?Divisible
Marital or Divisible: Property rights RECEIVED "AFTER" the date of separation, but before the date of distribution, if acquired by labor during the marriage and before the date of separation (e.g., employee benefits)Divisible
Marital or Divisible: "Passive" income from marital property received post-separationDivisible
Marital or Divisible: Increases and decreases in marital debt. PSS payments of marital debt that decrease the debts.Divisible
What is "marital" property?All "presently owned" real and personal property acquired by either spouse during the course of the marriage.



Question Answer
What may a separation agreement waive?May serve to waive or bar (i) alimony and (ii) property division. It can also agree on custody and child support, but the court is not bound.
What are the formality requirements for separation agreement?(1) must be in writing (SOF) and (2) acknowledged by both parties before a certifying officer (notary public)
What effect if parties submit separation agreement to the court?It automatically becomes a COURT ORDER (regardless of any contract language to the contrary). It's provisions will be "modifiable" and enforceable by contempt.
What effect if parties do NOT submit separation agreement to the court?It is considered not a court order, but a contract. Will NOT be "modifiable" except with the consent of both parties or pursuant to the terms of their agreement, and enforceable by CONTRACT REMEDIES.

Recent badges