Family Law Case Update

Cheryl HowellJune 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

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

Separation Agreements

Executed while separated or when separation imminent

Can resolve all issues Executory provisions voided by

reconciliation

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)

Dawbarn

Fraud, duress, undue influence 3 year statute of limitation

Unconscionability Need procedural AND substantive

Breach of fiduciary duty

Agreements

Kornegay v. Robinson, COA Feb. 2006

Premarital agreement GS 52B

Must be entered “voluntarily” Disclosure required - GS 52B-7

Declaratory Judgment

Agreement incorporated into divorce

Declaratory Judgment (GS 1-254) to interpret?

Fucito v. Francis, COA, Dec. 2005

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?

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 $$

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?

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

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?

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

Imputing Income

Voluntarily unemployed or underemployed; and

Capable of providing support; and Bad faith; OR Deliberate suppression of income

to avoid support

Child Support

Stay home mom during first marriage

Stay home mom during second marriage

Impute income? How much? Roberts v. McAllister, COA Nov.

2005

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?

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 ?

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?

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