The Conference Room--Answers to Questions on N.C. Law

Amending the Amendment

West face of the United States Supreme Court building in Washington, D.C. Español: Edificio de la Corte Suprema de Estados Unidos en Washington, D.C. (Photo credit: Wikipedia)

A few days ago, Amendment One was passed in North Carolina by a margin of 61 percent to 39 percent according to unofficial results, with only seven of North Carolina’s 100 counties voting against the Amendment. Opponents of the Amendment, which included not only those in favor of marriage for homosexuals, but those in favor of civil unions, and those worried about the unintended consequences of the Amendment (as discussed earlier), are now searching for ways to “repeal” or at least amend Amendment One.

The North Carolina Supreme court has the power to void a law passed by the North Carolina general assembly if the justices determine that the law is in conflict with the North Carolina Constitution. However, Amendment One is not a law, but rather is now part of the North Carolina Constitution and therefore, by definition, it is not unconstitutional. This power of the North Carolina courts is one reason given by the supporters of Amendment One as to why the amendment was needed when there was already a law in North Carolina restricting marriage to being between a man and a woman. The supporters were fearful that the North Carolina Supreme Court may one day find the old defense of marriage law to be in conflict with the equal protection provisions of the North Carolina Constitution.

The process that opponents of the Amendment must take is the exact same process that the supporters of the Amendment used to get it passed. North Carolina does not have a statewide initiative process like some other states, most notably California, so either two-thirds of the members of each house of the General Assembly call for a constitutional convention, or, three-fifths of all members of each house vote to send a proposed amendment to the voters. Then a simple majority would govern.  

The only other method for the removal of Amendment One, and indeed for all federal and state laws and state constitutions, is for the United States Supreme Court to determine that the US Constitution forbids restricting marriages to opposite-sex couples only. Currently, the case of Perry v. Brown, a case decided by the U.S. Court of Appeals for the Ninth Circuit, found that a California law outlawing same sex marriages violated the U.S. Constitution. The case will likely reach the U.S. Supreme Court, who would then have the opportunity to overturn not only that California law, but all laws in the United States, including Amendment One. There is some precedent for this despite marriage being historically a state, rather than a federal, institution, in the case of Loving v. Virginia, which found that banning interracial marriages was a violation of the U.S. Constitution.

For the supporters of same-sex marriage bans, the trump to the U.S. Supreme Court is a version of Amendment One in the U.S. Constitution. That amendment would require two-thirds of each house of Congress and ratification of three-fourths of the states (38 of the current 50). This was attempted last in 2006, where such an amendment failed to recieve the two-thirds majority in the House of Representatives.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

Amendment One

    On May 8, 2012, North Carolina citizens will be going to the polls to cast their vote in the Republican Primary. Also at stake in this election is an issue which should be of great importance to all voters, regardless of their political party, whether to vote FOR or AGAINST a proposed amendment to our North Carolina State Constitution. North Carolina Senate Bill 511, more commonly referred to as “Amendment One,” asks voters to decide whether to amend the State Constitution to limit the types of domestic relationships which shall be deemed “valid” or capable of being “recognized” in this State. Sponsored by Senator Peter Brunstetter, the actual title of the Bill is: “An Act to Amend the Constitution to Provide That Marriage Between One Man and One Woman is the Only Domestic Legal Union That Shall Be Valid or Recognized in This State.” The language of the Bill, proposing to add a new section to Article XIV, is as follows:

Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.

    The purpose of the proposed amendment, according to its sponsors and proponents, is to prevent a rogue judiciary with a liberal agenda from overturning existing statutory prohibitions against gay marriage in this State.

But I thought it was already illegal for homosexual couples to marry in North Carolina?

    North Carolina General Statute Section 51-1 limits legal marriage as between “a male and female person” only, and further prohibits courts in this state from recognizing same sex marriages created in other states under the Full Faith and Credit clause of the United States Constitution.   A constitutional amendment, argue proponents of the bill, would prevent liberal judges from eroding the applicability of this statute and would ensure that same sex couples may not receive the same or similar rights/benefits as married couples. However, many judges, attorneys, law professors and other professionals from across the political spectrum have come out in opposition to Amendment One, concerned that the language of the proposed amendment is so broad that it goes far beyond the current ban on same-sex marriage and places the rights of both homo- and heterosexual couples and families at risk. Of particular concern is the fact that there is currently no definition of exactly what constitutes a “domestic legal union” in the laws of North Carolina or of any other state. In fact, the language of North Carolina’s proposed marriage amendment is significantly broader than marriage amendments that have been passed in other states. The language of Amendment One would introduce terms and concepts into our State Constitution that are not clear on their face, have never been interpreted by our Courts, and the impacts of which are untested and uncertain as to meaning and scope.

If gay marriage is already banned in North Carolina, what impact would this Constitutional Amendment have on family law in this State?

      My short answer is that we aren’t is exactly sure. In declaring that no “domestic legal union” other than heterosexual marriage “shall be valid or recognized by this state,” Amendment One goes beyond the parameters of the existing statutory ban on gay marriage and into uncharted legal territory. N.C. General Stat. Section 51-1 forbids homosexual marriage, however it does not limit the State’s ability to grant a more limited set of rights and protections to same sex or opposite sex unmarried couples living here. In fact, despite the statutory prohibition against marrying, both homo and heterosexual couples may create marriage-like relationships with one another through legal documents such as wills, grants of powers of attorney, health care and financial directives and designations within some employer benefit programs. These relationships in turn confer benefits to unmarried partners and their children, for example in the receipt of health insurance benefits.1 Amendment One would most certainly put an end to these benefits. Since the Amendment states that the only “domestic legal union” which is valid or recognized would be heterosexual marriage, alternative arrangements would not be capable of legal existence and therefore members could not receive benefits. For employees of two of the State’s largest counties and two of its five largest cities, all current domestic partner benefits would come to an immediate end. Employees of private companies, including Bank of America, may also see their rights affected.

What about the Amendment’s language regarding contracts which would continue to be recognized?

    The problem with the logic that unmarried couples could avoid the harsh application of Amendment One by executing binding legal contracts with one another is that a number of important issues cannot be covered by such documents. For example, a will is not a contract. If Amendment One passes, one member of an unmarried couple who devises his or her property to the other would be open to challenge by the deceased partner’s relatives, who might claim that the will was procured by undue influence in that it was the result of a domestic relationship deemed unlawful by our State Constitution.  

    So too, financial and health care powers of attorney executed on behalf of unmarried partners would be subject to challenge, potentially meaning that the surviving partner could not make important end of life decisions including advanced directives such as whether or not to continue life on a breathing machine or feeding tube, or whether to donate organs.

I’ve heard that Amendment One could remove the protections of domestic violence laws from unmarried couples?

    This is a hotly debated issue. Just days ago a number of state district attorneys and member of law enforcement came out with the claim that domestic violence laws would be unaffected by Amendment One. However, Chapter 50B of our state statutes limits domestic violence protections to persons in a “personal relationship” with one another. The law defines this to include the following six categories: (1) current or former spouses; (2) persons of the opposite sex who live together or have lived together; (3) parents and children and grandparents and grandchildren, including persons acting in loco parentis to a minor child; (4) people who have a child in common; (5) current or former household members; and (6) people of the opposite sex who are in a dating relationship or have been in a dating relationship. North Carolina courts have consistently applied the domestic violence protections in cases involving unmarried straight and gay couples. However, the proposed Amendment which limits our State’s recognition of “personal relationships” to only married couples would consequently restrict the availability of civil and criminal protections for unmarried victims of domestic violence.

      In a recent article discussing the Amendment, respected legal scholar and professor of family law at Wake Forest University Suzanne Reynolds wrote the following:

    Unlike other law protecting us from criminal conduct, domestic violence law requires that the victim and batterer have a “personal relationship.” We learned by tragic experience in this country and state that the more general law of assault and battery simply is inadequate to address the very different threat of violence in the home. Before someone is entitled to the extraordinary relief that the law of domestic violence provides, however, the victim must have a “personal relationship” with the batterer. Currently in North Carolina, a victim may invoke the law of domestic violence for her protection even if that “personal relationship” is an unmarried relationship – between persons of the same or different sexes.

    But if Amendment One passes, the state constitution ties the state’s hands: the state will be constitutionally forbidden from recognizing an unmarried relationship as a valid “domestic legal union.” If a batterer lives with his victim – of the same or different sex – he will surely argue that the victim lives in a domestic union that the state constitution declares is no longer legal. Consequently, she must rely on the law of assault and battery – law that we already know is inadequate to the special vulnerability of someone who is battered in the home.

    Why am I so certain that batterers will raise these arguments? Because in states with marriage-related amendments, they already have. The domestic violence laws of these other states, like the current domestic violence law of North Carolina, protected persons who were unmarried. But after the state passed a marriage-related amendment, batterers argued that the amendment restricted domestic violence protection to married victims and batterers.
Eventually the appellate courts of both states concluded that the wording of the constitutional amendments did not prevent the state from continuing to use domestic violence law to protect victims in unmarried relationships. But, both of those amendments were much narrower than the breathtakingly broad Amendment One. In both states, the marriage-related amendments restricted the state only from creating a status that approximated marriage.That is not what Amendment One does. Amendment One tells the state of North Carolina that no domestic union except marriage is legal or valid.

Are there any other consequences if Amendment One passes?

    Absolutely. This post is simply meant to identify some of the key issues in this debate, which I hope motivates further investigation by voters. The current child custody laws in North Carolina allow unmarried couples to create families and to exercise legal rights with regard to their children. The passage of Amendment One threatens to undermine decades of progress in this area of the law. If unmarried couples, particularly same sex couples, are incapable of legal recognition by North Carolina courts, this calls into question the ability of an unmarried parent’s ability to enforce existing custody orders or to pursue custody or visitation rights in the future.
The simple fact is, the language of the proposed Amendment is unduly vague, and the (perhaps unintended) consequences far too great. Courts will struggle, as they have for years in other states, with how to interpret the language of this poorly drafted amendment. North Carolina families, including tens of thousands of children, could be negatively affected by the application of this amendment in seeing their benefits eliminated, their parents’ relationships not recognized, their access to domestic violence protections threatened, and their custodial relationships with unmarried parents at risk. For more information, read the paper written by Professor Maxine Eichner of the University of North Carolina, Chapel Hill entitled, "Potential Legal Impact of the Proposed Domestic Legal Union Amendment to the North Carolina Constitution"

--Jennifer Bennett joined Hodges & Coxe PC as an associate attorney in 2010 and currently practices in the areas of general civil litigation and matrimonial law, focusing on divorce, child custody disputes, establishment and defense of child and spousal support obligations, equitable distribution and marital tort claims. You can reach her at (910) 772-1678 or at jbennett@hc-lawfirm.com

Rules for Kids

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Having just celebrated my first Christmas holiday with my nine-month-old son, I started to think about children whose parents are divorcing and all of the complicated issues that arise when custody is a contested issue, during the holidays and throughout the year. The reality is that when two parents make the difficult decision to live separately, their children’s lives must also change. Children of divorce have two homes. They spend holidays and special occasions shuffling back and forth between houses or dividing their time and attention to accommodate the realities of their new life. There is no avoiding this change, and while I have seen many, many successful instances where parents and children navigate such uncharted waters amicably and develop a new “normal,” I have seen other cases where the children of divorcing parents suffer from anxiety, depression or have difficulties with school and personal relationships as a result of being torn between two houses. Children, and the all important considerations surrounding their custody, are certainly at the top of my clients’ priority lists and as such, custody litigation is one of the most hotly contested areas of domestic law. Sometimes battles over the custody of children are inevitable. Sometimes real problems exist that necessitate asking a Court to step in and determine what is in a child’s best interest, because a parent cannot or will not do so. However, such vicious custody litigation is actually rare. In most instances, we are fighting over shades of grey much more than black and white. In those cases, especially, I believe that there are behaviors which parents engage in—many times without even realizing it—which have serious and sobering impact on their children in ways they never intended.

I recently read an article by Kara Bishop titled, “If Your Kids Could Make the Rules of Divorce,” which I have included below in its entirety to accompany this month’s blog. Ms. Bishop runs a program aimed at helping children deal with divorce in which she asks her 10-12 year olds to identify a list of “rules” they wish their parents would follow in regards to them during the divorce process, and afterward. I was deeply moved by this list, and I felt it important to share it. I have litigated many custody matters over the years and have witnessed well-meaning, loving parents behave in ways they would never approve of under “normal” circumstances. I believe it is important to give a voice to the children of divorce—perhaps in hopes that a review of these “rules” may provide a parent contemplating separation with some guidance in how to behave during the process. If you have questions about how to protect your children, or how to proceed if you are contemplating separating from your spouse and you have minor children, please do not hesitate to contact me for a free consultation. 

As promised, here are the "Top Ten Rules" most commonly wished for by children of divorcing parents, taken from Ms. Bishop’s article:

1. Don't Say Bad Things About My Other Parent

This rule comes up every time we've done the exercise and almost always in the top five. It also seeps into many other exercises, from one where kids express their feelings artistically on postcards (see example below) to one where kids role play an advice-giving radio talk show. They really want to know how to stop the "bad-mouthing," especially those kids who have actually asked their parents to stop only to be told "you need to know what kind of person your ____is" or, "it's not bad-mouthing if it's true."

The kids want you to know that they "don't care if it's true;" they just "want it to stop" because "hearing bad things about someone I love hurts my heart".

The above rule is so pervasive that even after isolating it, it haunts our next rule:

2. Keep Us Out Of Adult Stuff

Bad mouthing the parent doesn't have to be an outright proclamation, it can be the subtle or not so subtle release of information beyond the child's years of comprehension and/or need to know. There is no educational or emotional value in telling a child, "there will be no ____ because your other parent is behind on child support," or "your ____ left us because they're boinking a co-worker."

3. Don't Make Me Feel Bad For Loving The Other Parent

At 11, Aaron (the inspiration for my work in this area), was the only child of three still willing to endure his mother's wrath in order to continue seeing his dad. He braved being called "stupid just like your dad," constant questioning -- "why do you want to be with the person who broke up our family?" -- and having his bags packed by the front door after being told, "if you like him so much, just go live with him."

By 14 he had given in, but only after the entire other side of the family sat him down and told him he was being a "traitor to his real family" for continuing to see his dad against his moms wishes and that he had to choose "us or him."

What I really want parents to understand is that while they may think their actions are only punishing their ex, they are also (and often even more so) punishing their child.

I'm pretty sure every parent reading this can imagine how sad and deprived their child would be without their special love. Can being deprived of the other parent's love be any less sad? With that knowledge, would you still do something that makes your child any degree of sad, just to punish your ex?

4. Learn To Get Along For Big Events

Kids want and deserve to have both parents at their game/play/graduation. You don't have to stand next to each other, but don't "hide the date" from the other parent.

5. Don't Make Me Choose Sides

They want you to know this is "the worst thing you could ever make a kid to do."

6. No Fighting In Front Of Us

As a prelude to one of our coping exercises, the kids have to pick a common situation that makes them so uncomfortable that they have to "get out of there." Seeing or hearing their parents fight is the one that comes up the most.

7. Don't Make Me A Messenger Or Put Me In The Middle

Even sending simple messages through your child is a burden. It's not their job to remember to pass the message along, get the message right, get an answer and then deliver the response back to you. They want you to "find a way to communicate."

8. Don't Share Or Take Your Anger Out On Me.

This one probably has the most variety in how it's written: "Don't share your anger with me," "shelter me from your anger," "don't take your anger at them out on me." But my favorite is "let me still be a happy kid."

9. Don't Ask Me To Spy

Our November group had a girl who was actually given a notebook to write her observations in. It's heartbreaking to understand that her sharing of this deed was really more of a confession. She knew it was wrong, but wanted to be an obedient daughter.

10. Give Me One-On-One Time With Both Parents

This rule and "give me equal time with both parents" would actually be higher on the list if we didn't separate them from their kin. But because there are powers (courts) that may keep this rule from becoming a reality, we often suggest that the kids try to steer away from the "equal" wording. That works about half the time. But not at all when we have one of those rare kids who gets to stay in their home while their parents rotate in and out. Then the request becomes downright insistent: "we stay home, you switch houses every week!"

Happy New Year everyone!

--Jennifer Bennett joined Hodges & Coxe PC as an associate attorney in 2010 and currently practices in the areas of general civil litigation and matrimonial law, focusing on divorce, child custody disputes, establishment and defense of child and spousal support obligations, equitable distribution and marital tort claims. You can reach her at (910) 772-1678 or at jbennett@hc-lawfirm.com

The Kardashian Effect—Legal Separation, Divorce “Papers” and Whether to Seek Annulment or Absolute Divorce?

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By now even the non-entertainment savvy amongst us has heard about reality television “star” Kim Kardashian’s made-for-television, multi-million dollar marriage to NBA player Kris Humphries, and their equally publicized break-up a mere 72 days later. Reports have circulated that Kim K. initially asked Humphries for an annulment, however his refusal to “agree” to one left her forced to go the more traditional route of filing for a divorce, citing “irreconcilable differences.”

One of the more frequent questions I receive in my domestic practice surrounds the question of exactly what “papers” a potential client must obtain in order to “legally separate” from his or her spouse. In fact, in North Carolina there are no such “papers” that are needed in order to effectuate a valid, legal separation. North Carolina is what is called a “no-fault” divorce state, meaning that the only requirement for legal separation is a decision by one of the spouses to end marital co-habitation, followed by the action of actually physically separating and no longer living together as husband and wife. It is not even required that the decision to separate be a mutual decision. So long as one spouse has communicated his or her desire to separate from the other spouse, and acted on it—meaning physically ceased cohabitation—a legal separation has occurred. Terms like “irreconcilable differences” are irrelevant in this state, as North Carolina does not require a petitioner to cite a reason for the separation in order to later file for an absolute divorce.

Back to the Kardashians, reports that KK’s beloved Mr. Humphries thwarted her attempts at an annulment might make for good checkout magazine fodder, but legally speaking this is not possible. This is because in California, as in this state, parties cannot merely “agree” to an annulment but rather they must qualify for one under some very strict criteria. Interestingly, the length of Kim Kardashian’s marriage would be irrelevant to a determination of whether or not she could have the union annulled. To “annul” a marriage is to ask that it be declared invalid, that it never legally existed. An action for divorce ends an otherwise valid marriage, whereas an action for an annulment seeks a declaration that the marriage never existed. Annulments are rare, largely because a person must prove grounds to qualify for an annulment before one may be granted by the Court.

Faced with not wanting to wait the mandatory twelve months it takes to obtain an absolute divorce, many newly separated clients ask whether they are able to seek an annulment of the marriage as a faster alternative. Unfortunately, the length of the marriage is not a consideration in whether or not annulment is available and seeking an annulment is not always a faster option for ending the legal bond of husband and wife. In some circumstances, a marriage may be declared “void” and in others, it may be “voidable” based upon a particular set of circumstances. Chapter 51 of the North Carolina General Statutes provides that a marriage may be declared void only if:

1) the marriage was between any two persons nearer of kin than first cousins, or between double first cousins;

2) either of the parties is under the age of 16 (with a limited exception) at the time of marriage;

3) one of both of the parties to the marriage was already married to another living person at the time of marriage;

4) one or both of the parties to the marriage was physically impotent at the time of the marriage; or

5) at the time of the marriage, one or both of the parties was “incapable of contracting from want of will or understanding;” OR

6) the marriage was contracted under the representation that the female is pregnant, the parties separate within 45 days of marriage, and no child is born to the female within ten months of the date of separation.

It is important to note that none of the above-stated grounds for annulment have to do with fraud other than fraud regarding impotency or regarding a pregnancy. Fraud regarding other issues, for example the desire to have children, is not a ground for annulment.  Furthermore, only a bigamous marriage cannot be ratified by the parties. Meaning that even if one of the other “voidable” criteria is met, if the parties were aware of the defect at the time of marriage and married anyway, this is not a basis for annulment later.

As a practical matter, annulment is a rare and specialized cause of action. In most instances, parties will not qualify and will instead need to wait the requisite 12 months before they may petition the Court for a divorce. If you are contemplating separation or would like to speak with an experienced attorney, Hodges & Coxe can help. I offer free consultations and am always happy to sit down with you to discuss your specific case and to determine what path is best for you.

--Jennifer Bennett joined Hodges & Coxe PC as an associate attorney in 2010 and currently practices in the areas of general civil litigation and matrimonial law, focusing on divorce, child custody disputes, establishment and defense of child and spousal support obligations, equitable distribution and marital tort claims. You can reach her at (910) 772-1678 or at jbennett@hc-lawfirm.com

Spys Like Us

COVERT COMMUNICATIONS—When is it “OK” to record a conversation with my spouse or my chidren in the context of a contested divorce case?

    The two most frequent areas where electronic surveillance is used in litigation arise in the context of commercial espionage, and in domestic litigation. As formerly “high tech” surveillance technology is now available at a relatively low cost to anyone with an internet connection and a credit card, the issue of whether, and how, my clients may record and document conversations with their spouses or children has become a regular part of my practice. It is an important area to address at the outset of litigation, because the laws regarding privacy and surveillance are complex , vary from state to state,  and can result in civil and criminal penalties for violations. This means that if your spouse moves with your minor children across state lines, you may be invoking the laws of a foreign jurisdiction or the federal government if you initiate surveillance or attempt to record a conversation with him or her.  Not only could you subject yourself to civil and criminal penalties, but you could make otherwise valuable evidence inadmissible at a future hearing in your divorce proceedings.

The Law…

    The Electronic Communications Privacy Act and the Stored Wire and Electronic Communications Act, commonly grouped together as the Electronic Communications Privacy Act, or ECPA, comprise the set of federal laws which prohibit both private citizens and law enforcement from engaging in certain types of electronic eavesdropping. Congress passed the ECPA in 1986 to update the Federal Wiretap Act of 1968, which attempted to protect citizens’ privacy by proscribing the use of recording devices in the use of telephone lines. As with most things, technology evolved beyond the scope the original lawmakers could have foreseen. In 1968, no one envisioned the widespread use of cellular phones, text messaging, or the internet. Since the ECPA was enacted in 1986, it has also been updated to reflect new developments in the realm of communication technology. North Carolina has adopted laws which closely mirror the Federal Act, codified at Article 16 of Chapter 15A of the General Statutes under “Electronic Surveillance.”

    Both the ECPA and the North Carolina Electronic Surveillance Act (ESA) create civil and criminal penalties for anyone who intentionally intercepts, uses or discloses any wire or oral communication by using any electronic, mechanical, or other device. The statute defines “interception” as the “aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” The Act likewise bans unauthorized access to wire or electronic communication in storage, which is defined as “any temporary, immediate storage of a wire or electronic communication.”  

    So, when may I record a conversation with my spouse?

    In North Carolina, telephone and oral communications may only be recorded if one of the parties to the communication is aware of and has consented to its being recorded. This means that you may record your own phone calls or conversations, but you may not record conversations between your spouse and a third party if neither knows the conversation is being taped. You may also not set up recording equipment your home or car to capture all conversations and activities taking place in those locations. At present, you may install video monitoring equipment, however the same may not have an audio component.  Also, you should be aware that if you are recording a conversation with a party in another state, the state with the more stringent laws will apply. This means that if you are in North Carolina, which is a one-party consent state, and the person you intend to record is in California, which requires the consent of all parties to the conversation, the California law would govern.

    May I record conversations with my children?

    You may record conversations that you have with your children, because you are a participant in those communications. Ordinarily, federal and state privacy laws would prohibit any recordings between your children and a third party, without the consent of that party (your children are minors and therefore cannot consent to the recording). However, in certain limited circumstances, where you can demonstrate a good faith, reasonable belief that your spouse or another individual is having communications with your children which are contrary to their best interests, you may record such conversations. This is called the vicarious consent doctrine. As a parent, you are vicariously consenting to the recording on your child’s behalf. As this standard is not easily identified, however, is it always best to speak with an attorney prior to recording such conversations so as to avoid potentially violating the law.

    I know my spouse’s passwords, may I access his or her e-mail or Facebook account to retrieve a document or to see what he or she has been doing since we separated?

    Both the Federal and North Carolina Acts prohibit the intentional, unauthorized access of another person’s electronic storage. This would include e-mail and social media accounts, and any other accounts which require a password for entry. If your spouse gave you his or her password and authorized you to retrieve a document, you may do so. However, you may not exceed this authority to scope through all of the messages, hoping to find something juicy to use in your case. You may also not go into your spouse’s accounts merely because you knew or could ascertain the password. To do so would violate the law and potentially make any document you retrieve inadmissible in your divorce trial.

--Jennifer Bennett joined Hodges & Coxe PC as an associate attorney in 2010 and currently practices in the areas of general civil litigation and matrimonial law, focusing on divorce, child custody disputes, establishment and defense of child and spousal support obligations, equitable distribution and marital tort claims. You can reach her at (910) 772-1678

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

Divorce and Separation Agreements

In North Carolina, you can obtain an absolute divorce upon the filing of a lawsuit alleging that you are a North Carolina resident (you have lived in this state for at least six consecutive months prior to filing) and that you and your spouse have been separated continuously for one year. Like most U.S. States, North Carolina is a “no fault” divorce state. This means that, in order to obtain an absolute divorce, neither spouse has to allege or prove any type of “marital fault” (for example, adultery, domestic violence or other cruel and abusive behavior, economic misconduct/marital fraud, habitual drunkenness or addiction) has occurred. It is not even necessary that you and your spouse have agreed to separate. So long as you have made the decision that you no longer wish to live together with him or her as a spouse, you inform them of your decision to separate, and you in fact take steps to live separately and apart, you have satisfied the requirements of North Carolina law.

However, it is important to remember that there are many marital issues that are not solved by merely seeking an absolute divorce. In fact, certain claims, such as those for alimony or dividing up the money, house, business and other stuff from the marriage (the "marital estate"), must be handled prior to getting an absolute divorce. Once the Court grants your divorce, you have waived your rights to seek a judicial determination of important marital rights. If you do have these kinds of issues, you should consult an attorney.

You do not need a separation agreement or other piece of paper in order to consider your self “legally” separated. Your date of separation may be considered the date upon which you have informed your spouse of your desire to end the marital relationship and have acted on that intention—that you have taken steps to live “separately and apart.” Usually this means that at least one spouse must depart the marital residence. In North Carolina there really is no such thing as “legal” separation.

Many separated couples who are able to amicably resolve their issues may consider a separation agreement. Separation and Property Settlement Agreements are a unique form of marital contract through which you and your spouse may negotiate issues of property division, support and custody, preventing you from having to ever go to court. Once signed by both parties, these Agreements remain in full force and effect throughout your separation and are usually incorporated into a late divorce judgment. Separation Agreements are enforceable against a non-performing spouse both during your period of separation and following your divorce. Once incorporated into your divorce judgment, provisions of a Separation Agreement related to support, custody  and visitation remain modifiable according to the same rules and requirements which govern court orders.
 

Separation Agreements are an attractive option for many people who wish to amicably resolve issues which arise as a result of their marital separation. Separation and Property Settlement Agreements are often much less costly in terms of both your financial and emotional investment, and they provide spouses with a great deal of control over the outcome of their particular case. Separation Agreements can be custom-tailored to your unique situation, taking into account each family’s personal needs and priorities. When compared with lengthy litigation in which a judge decides the outcome of your case, such control is extremely attractive. For these reasons and many others, executing a Separation and Property Settlement Agreement may save you a great deal of time, money and emotional turmoil as compared to traditional matrimonial litigation. Again, it is worth a consultation with an attorney to make sure that what you agree to is what the written agreement says.

(Thanks to Jennifer Bennett for her guest post on Divorce and Separation Agreements. I'll have her write more general information on other family law issues in the future.) 

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678