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Show Cause Contempt of CourtFailure to pay child support in North Carolina may result in a Show Cause Order and Civil Contempt proceedings.

Once entered, the Burden of Proof shifts, requiring the defendant/respondent to show why he or she should not be held in civil contempt of court.

Family law attorneys may refer to that person as the “contemnor.”

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Equitable-Distribution-and-Gifts-200x200Can a house be a “gift?”  What is Marital Property? Under the family laws for NC Equitable Distribution and Gifts, a Charlotte home (Denver NC residence) was determined to be marital property in Bond v. Manfredo.

Equitable Distribution involves the classification and distrubution of things like homes, bank accounts, personal property, 529 College Savings Plans, and retirement accounts.  It is relatively complicated and often involves substantial sums of money – Bill Powers, Charlotte Divorce Attorney 

Property distribution as part of a divorce is handled pursuant to North Carolina General Statutes and is not part of Common Law.  Under N.C.G.S. Chapter 50, the family law statute, in handling the equitable distribution of what divorce lawyers may refer to as the “marital estate” or “marital property” (marital assets), the judge is required to follow a 3-step process:

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529-Savings-Plans-200x200Equitable Distribution:  529 Savings Plans

In an Equitable Distribution NC proceeding, how does the Family Court judge classify college savings plans?  Specifically, are 529 Savings Plans, funded during the marriage and using marital funds, classified as a marital asset, divisible property, or separate property?

In a case of first impression clarifying Equitable Distribution, the North Carolina Court of appeals classified savings pursuant to 529 Savings Plans a marital asset, and therefore subject to distribution – Bill Powers, Charlotte Family Law Attorney 

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Charlotte-Child-Custody-and-Contempt-of-Court-200x200The North Carolina Court of Appeals ruled this week on a longstanding Charlotte child custody and contempt of court legal issue, described as, “an exceptionally contentious and prolonged custody battle” between a father and mother in Mecklenburg County Family Court.  Litigation began in January 2007 involving the custody of two children, one of whom has since “aged out” and has been the subject of various Show Cause Orders, Motions to Show Cause, Charlotte child custody and Contempt of Court proceedings since he was 11 years old.

Another daughter, who is now 17, is the subject of the present appeal in the Charlotte Family Court matter entitled Grissom v. Cohen.  To download a copy of the NC Court of Appeals opinion as published on October 2, 2018, see:  Charlotte Contempt of Court Child Custody 2018

The extent and nature of the litigation in the matter is remarkable, involving four different Charlotte Family Court Judges, 600+ findings of fact in 2 Custody Orders and at least two full child custody trials in Mecklenburg County.  While truly extraordinary in scope and duration, it does serve as an example of the lengths to which parents will fight for child custody and visitation in Charlotte – Bill Powers, Divorce Lawyer Charlotte NC 

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Custody4-200x200The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a uniform law drafted by the Uniform Law Commission in 1997. The UCCJEA encompasses a set of guidelines for courts to follow in their determination of child custody. To date, the law has been adopted by 49 states and Washington, DC. The UCCJEA breaks down legal and physical custody, sole and joint custody, grandparent visitation rights as well as factors to assess custodial rights.

Legal and Physical Custody

The law has divided custodial rights into two categories (legal and physical custody). Legal custody is the right and obligation to make decisions about the child’s well-being and upbringing. These include decisions regarding the child’s schooling, medical care and religious activities. Many states normally permit both parents to share legal custody of the child depending on the circumstances of the custody case. Physical custody is the right of a parent to have a child reside with him or her. There are two forms of physical and legal custody: sole or joint custody.

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LGBT_Marriage-200x200The applicability of federal law in a country where each state is its own sovereign can cause some complexity for issues such as same-sex marriage. Marriage is under the ambit of state law, however, where the federal law interprets state law as a violation of constitutional rights, states must yield to the federal interpretation of the law. Same-sex couples seeking to marry have to gain a clear understanding of the marriage laws governing their jurisdiction. North Carolina is an example of a state where some complexity exists.

Same-Sex Marriage Under Federal Law


To fully understand state law, individuals must understand its relationship to the federal law. On June 26, 2015, same-sex marriage was pronounced as legal nationwide in the landmark case of Obergefell v. Hodges. In that case, the Supreme Court of the United States held that same-sex marriage was a guarantee under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment of the Constitution. With this ruling, same-sex marriages were recognized in all 50 states and Washington D.C. As of today, about seven counties in Texas and Alabama do not issue marriage licenses to same-sex couples.

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Family4-200x200Spousal privilege is the legal and policy doctrine that accords confidentiality between spouses with an aim to encourage martial harmony and to protect families. There are two types of spousal privilege: (1) testimonial privilege and (2) communications privilege. Each privilege applies in finite circumstances and requires an inquiry into the status of the marriage.

Testimonial Privilege

Testimonial privilege is asserted in criminal cases. In this scenario, one spouse is called to testify against another spouse in a criminal proceeding. The spouse who is being called to the stand can assert testimonial privilege and refuse to testify against the defendant spouse. At the same time, this privilege is not absolute. The witness spouse may choose to waive his or her privilege and testify anyway. This can occur even under the objection of the defendant spouse.  In different jurisdictions, there are exceptions to testimonial privilege including in the case of marital rape. For the testimonial privilege to apply, the defendant spouse and the witness spouse must be married at the time the privilege is asserted.

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Div12-200x200At first blush, the North Carolina law requiring a one-year separation period before a court can grant divorce has some saving qualities. One might view the law as creating the space and time for couples to reconsider divorce, which is especially important when children are involved. However, for certain individuals, the one-year waiting period is quite a burden.

One-Year Waiting Period May be Incompatible for Certain Marriages

A 33-year-old woman living in North Carolina separated from her husband and was able to provide solid evidence to a court to warrant a restraining order. Included in her evidence were photos of injuries she claims she sustained from the abuse of her husband. Even with a documented history of abuse and a restraining order, the woman must wait one year before seeking a divorce. During the interim, she had to pay her  husband’s health insurance. She also had to endure the psychological distress of knowing that the person who allegedly abused her was legally recognized as her husband. Possible abuse victims like this woman fear for their safety when the state requires prolonging a legal relationship, which brings them pain and suffering. The issue with the one-year waiting period is not limited to psychological pain. Like the woman’s payment of her estranged spouse’s health insurance, sustained legal recognition of the marriage carries certain obligations and requirements abuse victims should not have to maintain. In one respect, the obligation may prove unethical and dangerous.

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Annulment-200x200Annulment is the legal procedure that declares a marriage void from its inception. The marriage is deemed as illegal when it was pronounced, therefore, the effect of an annulment is retroactive invalidity. Annulment is granted on varying grounds depending on the state at issue including insanity, bigamy and incest.

Voidable vs. Void Marriages

Under North Carolina law, a marriage is that void is subject to annulment. In the alternative, a marriage that is voidable is a marriage that is entered into with a major defect including: (1) incest, (2) false pretenses, (3) impotence, (4) lack of sound mind, and (5) one of the spouses being under the age of sixteen. All of these instances are grounds that the court will consider as voidable. Unlike void marriages, a court can deem a voidable marriage as valid depending on the circumstances of the case. For example, in the case of false pretenses, if you remain married after you discover that your spouse was never pregnant (as was communicated before the marriage), then a court can find validity under the rationale that the pregnancy was not the actual reason for seeking the annulment.

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DomesticViol2-200x200In North Carolina, a domestic violence protective order (DPVO) is a civil relief that is filed in district court. It permits the court to order an alleged abuser to do or refrain from doing certain acts as it relates to the plaintiff. Obtaining a DPVO requires the plaintiff to show that domestic abuse is being committed. In addition, the plaintiff must show a present or past personal relationship between themselves and the alleged abuser (among other requirements). The process for obtaining a DVPO has been streamlined for average citizens to take advantage of it to protect themselves.

How to Obtain a DVPO

A plaintiff must go to their district court to file DVPO forms. If the plaintiff requires filing outside of business hours, they may go to a magistrate. If the plaintiff requires an emergency filing, then the DVPO may advance as an ex parte filing. The ex parte filing will apply for a temporary order, and will not require the presence of the alleged abuser when the temporary order is issued. The DVPO also provides for temporary custody by the plaintiff if there are children involved. In addition, the alleged abuser must surrender all firearms. There are no fees associated with filing a DVPO in North Carolina. After filing for the DVPO, the plaintiff must take the forms to the sheriff’s department. In turn, the sheriff’s department will serve the defendant with the complaint and a summons to appear in court. Thereafter, a hearing is scheduled on the merits of the case where the plaintiff must show evidence that the alleged abusive acts were actually committed.

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