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Family Law Case Update

Family Law Case Update. Cheryl Howell June 2006. Contracts - Review. Premarital agreements Postnuptial agreements Separation Agreements. Premarital agreements. Uniform Premarital Agreements Act GS 52B No consideration required Can contract re: alimony. Postnuptial agreements.

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Family Law Case Update

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  1. Family Law Case Update Cheryl Howell June 2006

  2. Contracts - Review • Premarital agreements • Postnuptial agreements • Separation Agreements

  3. Premarital agreements • Uniform Premarital Agreements Act • GS 52B • No consideration required • Can contract re: alimony

  4. Postnuptial agreements • GS 52-10(a) • Contracts valid unless violate public policy • GS 50-20(d) • Agreements re: property division allowed “before, during or after marriage” • No alimony agreement unless separated

  5. Separation Agreements • Executed while separated or when separation imminent • Can resolve all issues • Executory provisions voided by reconciliation

  6. Agreements • Dawbarn v. Dawbarn, COA Feb. 2006 • Postnuptial agreement • Violates public policy? • Cf. Williams, 120 NC App 707 (1995) • Cf. Matthews, 2 NC App 143 (1968)

  7. Dawbarn • Fraud, duress, undue influence • 3 year statute of limitation • Unconscionability • Need procedural AND substantive • Breach of fiduciary duty

  8. Agreements • Kornegay v. Robinson, COA Feb. 2006 • Premarital agreement • GS 52B • Must be entered “voluntarily” • Disclosure required - GS 52B-7

  9. Declaratory Judgment • Agreement incorporated into divorce • Declaratory Judgment (GS 1-254) to interpret? • Fucito v. Francis, COA, Dec. 2005

  10. Classification • H inherits real property • H transfers title to H & W as tenants by the entirety • W testifies no gift • H testifies no gift • Gift?

  11. Distributive awards • Presumption that in-kind is equitable has been rebutted • Identify assets to pay award, OR • Identify and consider financial impact of liquidating assets or borrowing $$

  12. Debt • Equity line balance $17,738 on date of separation (marital debt) • H pays $4,320 after separation (interest and finance charges on equity line) • How do you account for payments by H?

  13. Divisible Property • GS 50-20(b)(4)(d): Divisible property includes: • Increases and decreases in marital debt and finance charges and interest related to marital debt • Before October 11, 2002 - decreases were considered distribution factors

  14. Debt • W withdraws $7,500 more from equity line after separation • H pays interest and finance charges on that new debt • How do you account for H’s payments?

  15. Deviation Order • Guideline amount; and • Reasonable needs of child; and • Ability of each parent to pay; and • Guidelines inadequate/excessive and why, OR • Guidelines unjust/inappropriate and why; AND • Basis for amount ordered

  16. Imputing Income • Voluntarily unemployed or underemployed; and • Capable of providing support; and • Bad faith; OR • Deliberate suppression of income to avoid support

  17. Child Support • Stay home mom during first marriage • Stay home mom during second marriage • Impute income? • How much? • Roberts v. McAllister, COA Nov. 2005

  18. Custody Order Review • Order allows Wednesday night visitation • Judge states “Only until kindergarten” • Child starts kindergarten; mom stops Wednesday night visitation • Mom in contempt? • Can judge amend order?

  19. Custody Order Review • Joint legal custody to parents • primary physical to dad • visitation to mom • Order “approves placement of child with paternal grandmother” • Constitutional problems re: Price v. Howard ?

  20. Custody Order Review • Custody case filed (Chapter 50) • 50B action filed, 10-day hearing held and order entered • Defendant committed domestic violence • Custody order entered • Defendant did not commit domestic violence • Problem?

  21. Custody Order Review • Order awards parents “joint legal custody” • primary physical custody to mom • Order awards mom “primary decision making authority” • Problem? • Diehl v. Diehl, COA June 6, 2006

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