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Money 2.jpgIn a recent spousal support and attorney fees case out of California, a wife was ordered to pay spousal support to her estranged husband after he was convicted to domestic violence against her. The wife had financially supported her husband for years while he was both unemployed and abusive toward her. Finally, she secretly recorded an incident of domestic violence and took him to Court. After a jury trial during which the recording was played, the Husband was convicted of forced oral copulation.

When the divorce became finalized, the husband requested spousal support. The family court judge ordered that the wife pay to the husband $1,000.00 per month in spousal support and awarded the husband $47,000 in attorney fees. In California, as in North Carolina, judges have significant discretion when weighing marital misconduct in the context of an alimony award. Under North Carolina law, the only absolute bar to an award of alimony is the commission of illicit sexual behavior by the receiving spouse. Even adultery is not an absolute bar to an award of post separation support. Rather, it is one of many factors the family court may consider in determining the award of post separation support.

The wife earns in excess of $100,000 a year as a financial analyst and had been supporting her husband, a former car salesman, since the couple had their first child several years earlier. This was considered, as it would have been considered under North Carolina alimony law, by the Court in making its determination. The judge would have ordered the wife to pay $3,000 per month in alimony, but discounted the amount to $1,000 because of the sexual assault committed by the husband.

The Husband did receive an active jail sentence for the forced oral copulation. On this basis, the wife argued that the husband would not actually have any living expenses while he was in jail. Interestingly, the family court judge agreed with her. When the husband is released from jail in a few years, he will have the right to ask for spousal support again. The husband would be entitled to spousal support under California law.

This case is illustrative of a very interesting point. It is an excellent illustration of how much discretion family court judges have in most matters. As we have discussed here previously (Alimony Decision by North Carolina Court of Appeals) family court judges have wide discretion in spousal support cases. Similarly, family court judges have wide discretion in child custody matters. While it is difficult to imagine a family court judge determining, in their discretion, that the perpetrator of a violent felony would be entitled to alimony, there is nothing under California law which would serve as an absolute bar to the spousal support award. This wide discretion is one of the reasons why many family law matters are better off resolved by the parties in settlement. By resolving disputes by agreement, the parties maintain a level of control over the outcome of their divorce case. If a case goes on to trial, the parties take significant risk in allowing a third party, a family court judge, to resolve their divorce matters for them. Indeed, what may strike one judge as being appropriate in their discretion could vary widely from what might strike another judge as being appropriate under the very same circumstances. In short, because major decisions are often subject to determination under a very subjective standard, family law cases are often very unpredictable.

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children 1.jpgThe North Carolina Court of Appeals entered a ruling in the case of Crenshaw vs. Williams which came out of Mecklenburg County Family Court. This case involved a motion to modify child custody and a motion to modify child support. This case involved the registration of a foreign child custody and child support order in North Carolina for modification. This case illustrates important differences between North Carolina’s jurisdiction to register and modify a child custody decree and jurisdiction to register and modify a child support decree.

In this case, the parties had a prior Order from Michigan which addressed child custody and child support of the parties’ minor children. Ultimately, Father and the minor children lived in North Carolina with Father’s new wife while Mother lived in Georgia. Father registered the Michigan child custody and child support order in North Carolina and made a motion to modify child custody and a motion to modify child support. The trial court entered an order modifying child custody and modifying child support. Mother appealed to the North Carolina Court of Appeals.

With respect to the modification of child support, the North Carolina Court of Appeals ruled that the Uniform Interstate Family Support Act (UIFSA) required that Father register the Michigan Order in Georgia to seek a modification. Since Mother was the obligor (the party who had to pay child support under the Michigan Order), UIFSA required that the Michigan Order be registered in Georgia. Georgia would then have the authority to modify the child support obligation, if it was appropriate.

With respect to the modification of child custody, the North Carolina Court of Appeals ruled that the registration was appropriate under North Carolina General Statutes Section 50A-203(2) and that the North Carolina trial court, therefore, had subject matter jurisdiction to modify the foreign child custody Order from Michigan. Since North Carolina was the “home state” of the minor children, it was appropriate to register and modify that child support order in North Carolina. North Carolina law dictates that the “home state” of a minor child is the state in which the children have resided for the six months immediately prior to the filing of the action.

Mother attempted to argue that the child custody and child support determinations were too closely intertwined to be determined separately and, therefore, the trial court should not have determined the modification of child custody issue since it did not have jurisdiction to determine child support. The North Carolina Court of Appeals considered this argument and rejected it because there was ample evidence that the trial court considered beyond the respective financial positions of the parties which related to the best interests of the minor children.

The North Carolina trial court awarded the Father primary custody of the parties’ minor children. There were numerous findings of fact which demonstrated a substantial change in circumstances affecting the wellbeing of the minor children since the prior child custody order was entered in Michigan. The trial court also found numerous facts which supported its finding that awarding primary custody of the minor children to Father was in the best interests of the minor children.

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divorce.jpgThe common saying is “the seven year itch.” The theory being that around the seven year mark in a marriage, the couple is likely to become too comfortable and maybe even disenchanted with the relationship. Similarly, it may be that the rush of first being married has worn off. Or, maybe the couple has finished having babies so that thrill is gone too. Obviously, there is no formula which can predict with any certainty how long a marriage will last. Some end in divorce sooner, some end in divorce later, some marriages do not end in divorce. Perhaps the marriage ends when one of the spouses passes away.

But, according to a study in the UK involving 2,000 respondents, more couples run into trouble after the first three years of the marriage. The data seems to show that this is the point where the honeymoon phase really wears off. Similarly, this is also the point when the couple is likely to be making more significant financial investments together. Maybe the married couple signs an apartment least together, gets a joint bank account, joint cell phone contract, buy a house or maybe start having children (though it seems like couples are waiting longer and longer these days).

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iPhone.jpg How many creative iPhone or Droid apps have you seen lately? There are apps that do just about everything. There is a flashlight, a calculator, one that logs you into Ebay, one for Facebook. Heck, there are even some that can be used in the context of a family law case. There is the good old fashioned voice recorder, camera, video camera sort of stuff. There are others that will help calculate child support.

Yet, there are others that are a bit “different.” There is one that purports to allow one to make calls to a telephone and make it appear as though the call is coming from someone else (on caller ID). Another one purports to allow the user to send a text message to a telephone and make it appear to be from another cell phone. Obviously, the implications of this sort of ability on divorce litigation and evidentiary matters might be troubling.

Well, when Apple released its most recent iPhone (iPhone 4s) and operating system (iOS5) it included a feature which utilizes the GPS functionality of the iPhone. This application is called “Find my Friends.” As you might imagine, it did not take long before a suspicious spouse used this application to keep a watchful eye on the other spouse.

Although this account has not yet been verified, according to an article on ABC News/Yahoo! (Your Cheating Heart: iPhone App Finds Wife With Another Man). According to this blog post, the industrious (and suspicious) husband got a new iPhone for his wife.

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house.jpgThe North Carolina Court of Appeal upheld a trial court which granted wife’s motion for reconsideration. In this case, both the husband and the wife had declared bankruptcy. There was a second mortgage on the former marital home. While both parties identified the second mortgage in their bankruptcy, wife asserted that she was not responsible for that second mortgage.

The parties had a hearing on post separation support. During this hearing, Husband’s attorney asserted that there was no mortgage encumbering the former marital home. The parties reached a settlement before the end of the post separation support hearing. They signed a memorandum of judgment which called for husband to pay $2500 to wife and to transfer his interest in the former marital home to wife.

Husband complied with the requirements of the memorandum of judgment by paying $2500 to wife and transferring his interest in the home to wife via a Quitclaim Deed. Wife subsequently learned that there was, in fact, a mortgage encumbering the property. She filed a motion for reconsideration pursuant to North Carolina Rules of Civil Procedure Rule 60 and asked the Court to set aside the Consent Order. The trial Court granted the motion for relief from Judgment and Husband appealed.

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Thumbnail image for Judge.jpgThe North Carolina Court of Appeals recently dismissed an appeal as interlocutory. The issue on appeal was the parties’ date of separation. When suit was filed, the husband alleged that the parties’ date of separation was in 1995. The wife, of course, answered and counterclaimed. The interesting part is that the wife alleged that the date of separation was in 2007 – some 12 years later.
The trial court conducted an evidentiary hearing for the sole purpose of determining the parties’ date of separation. After taking evidence and considering the arguments of counsel, the trial court determined that the parties’ actual date of separation was in May of 2006. This happened to be a date that neither husband nor wife alleged to have been the parties’ date of separation.

The husband appealed the trial court’s determination of the parties’ date of separation. On appeal, Husband acknowledged that the appeal was interlocutory (obviously the parties’ respective claims for post separation support, alimony and equitable distribution had not yet been decided). Husband, however, argued that the determination of the parties’ date of separation affects a substantial right because it plays a vital role in the determination of the parties’ Chapter 50 claims.

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Divorce.jpgThe North Carolina Court of Appeals dismissed an appeal as interlocutory. The case involved a man and a woman who had lived together in Texas before moving to North Carolina. The parties moved to North Carolina, separated and the woman filed against the man for absolute divorce, post separation support, alimony and equitable distribution. She alleged that, under Texas law, the parties were common law man and wife. Of course, North Carolina does not recognize common law marriage.
The man answered and denied that the parties were married. He also raised counter claims based upon property rights, but did not raise any Chapter 50 counterclaims. The trial court determined that the parties were not married because, under Texas law, the parties were required to have a present intention to be man and wife. Apparently, the fact that they were separated and suing one another was convincing to the trial court.

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same-sex marriage.jpgAs reported by the Charlotte Observer (Poll: Most oppose same-sex marriage ban), according to a recent poll conducted by Elon University, fifty-six percent of North Carolina residents oppose a North Carolina state constitutional ban on same-sex marriage. Also, the number of individuals who would prefer to see no legal recognition for same-sex couples has dropped over the last two years.

Only thirty four percent of those polled oppose any legal recognition for same-sex couples. This figure is down significantly, from forty four percent, from the March 2009. Following a similar trend, thirty three percent of those polled support full marriage rights for same-sex couples, which is up from only twenty one percent in 2009. Roughly the same percentage of those polled support civil unions or partnerships, but not full marriage rights.
The study surveyed 594 North Carolina residents with a plus or minus 4 percentage point margin of error. The poll did not restrict respondents based on voter eligibility or likelihood of voting.

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