Louis C.K. Approach to Divorce - David Herring
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Divorce Blahhhging - David Herring
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Gay Marriage - David Herring
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Tools of the Trade - David Herring
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The Peacemaker and the Pugilist - David Herring
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Do you think your spouse owes you alimony? Maybe the court will agree (or perhaps your spouse will agree if it means a clean, less-expensive breakup). As the prospective recipient of alimony, though, be mindful of your love-life once everyone has signed the dotted line on the separation agreement. When drafting a separation agreement that includes provisions for alimony, it’s important to note that “statute trumps agreement.” In other words, just because you agree to something in a separation agreement doesn’t mean it will stand under the scrutiny of the law once your love-life heats up post-split. After multiple appeals (and who knows how much attorney fees), the North Carolina Supreme Court in Underwood v. Underwood, 365 N.C. 235, 717 S.E.2d 361 (2011), clarified some possible confusion in the alimony arena.

In the story of the Underwoods, William and Theresa Underwood decided to part ways after ten years of marriage. Litigation ensued. Once it was all settled, William agreed to pay $1,000.00 per month to his former wife, Theresa, in the form of alimony. The language of the court-ordered settlement stated that alimony would continue until Theresa either died or got remarried. William paid Theresa under the agreement’s alimony provisions for seven years, at which point Theresa was now living with her boyfriend. William saw Theresa’s new living situation as the perfect opportunity to stop his monthly payments, so he filed a motion to terminate his alimony obligation.

Theresa was not happy, to say the least. She moved to dismiss William’s motion to terminate. She based her reasoning on the language of the parties’ original, court-ordered agreement (more technically, on the agreement’s “reciprocal consideration provision,” but more on that in a follow-up post). Theresa claimed that, based on the law surrounding contract formation and consideration, their agreement could not be modified with respect to the alimony award. Period. She asserted that it simply didn’t matter she was living with her boyfriend—she was still entitled to the ongoing alimony payments because, frankly, she was neither remarried nor dead.

The trial court disagreed with her and terminated her alimony based on the mandates of North Carolina’s alimony statutes, namely, N.C. Gen. Stat. § 50-16.9(b): “If a dependent spouse who is receiving post-separation support or alimony from a supporting spouse under a judgment or order of a court of this State remarries or engages in cohabitation, the post-separation support or alimony shall terminate.” (emphasis added). Round after round of appeals ensued, and, ultimately, the Supreme Court agreed with the trial court’s decision to terminate. William prevailed. Query whether the present value of the stream of monthly alimony payments would have outweighed the attorney fees he incurred!

The take-away from the Court’s decision is twofold—

(1) Statutes can (and often do) trump agreements between parties: The Underwoods' alimony contract “cannot immunize alimony payments from modification or termination. Alimony is a creature of statute, subject to both modification and termination under sections 50–16.9(a) and (b), and a reciprocal consideration provision cannot override these statutory requirements.”

(2) The wording of a separation agreement is paramount in effecting the parties’ goals: If a spouse wants to ensure an alimony award is iron-clad, the wording of the contract providing for alimony is a central part of hedging risk against a future motion to terminate. Also, make sure you really love the person you’re moving in with! It may cost you.

Charlotte Divorce Lawyer and Family Law Attorney

Now that the Supreme Court has upheld several circuit court decisions permitting gay marriage, same sex couples can breathe freely knowing their marriage rights in North Carolina cannot be revoked. The legal protections accompanying this landmark ruling are vast. One set of rights many may not have yet considered relates to our state’s family law statutes.

A number of same-sex couples have lived together for many years, never expecting the state to sanction their unions. During those years when legal marriage was not an option, many had commitment services or took vows in another state only to have their rights remain unrecognized by North Carolina law. Even in the wake of the Windsor decision, decided by the U.S. Supreme Court in 2013 (the case mandating federal recognition of gay and lesbian marriages), state law still trumped with respect to property and financial rights following dissolution of a same-sex relationship. When one of these long-term partnerships ended, the law did little to provide the protections straight couples enjoyed—most notably in the areas of equitable distribution and spousal support rights.

For gay couples in our state, regardless the length of the relationship or the vows taken in another venue, splitting up carried none of the ramifications or protections associated with the dissolution of legal, heterosexual marriages. If, for example, a gay couple (or an unmarried straight couple, for that matter) were to have split after any number of years, dividing up the property would have been markedly more straightforward, if unjust. The basic rule of “title prevails” was the maxim governing gay couples deciding to split their assets when going their separate ways. If a gay couple lived together in a residence titled in the name of one party, irrespective of how much the other party might have contributed to the mortgage, the property remained solely that of the party holding title. Similarly, a stay-at-home partner living off his well-to-do boyfriend would have had no recourse (beyond groveling) when it came to post-break-up financial support. In essence, the lot of the gay couple pre-Obergefell was, in many ways, governed by a might-makes-right form of public policy. The legal framework simply did not exist to offer protection to gay couples, especially those with uneven bargaining power. All that’s changed now.

Today, if things go south, no longer does one partner have to rely on the good graces of the other or on the unforgiving letter inscribed on the deed to the couple’s house. The policy undergirding our state’s family law statutes and case law finally provides a safety net for same-sex spouses deciding to part ways.

Charlotte Divorce Lawyer and Family Law Attorney

It is important to understand the legal significance of getting a divorce in North Carolina. Oftentimes clients will call seeking representation simply for the purposes of getting a divorce from their spouse. Prospective clients may even understand the twofold requirement in North Carolina pursuant to N.C. Gen. Stat. § 50-6, namely, that “the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months.” Essentially, clients are sometimes hoping to make quick work of their marriage-gone-south—“I’ll just live apart from my ex for one year, and, voila, my problems are solved.”

During a marriage—even those marriages lasting a relatively short time—spouses inevitably accrue what is deemed “marital property” under the law. Perhaps there are funds in a bank account, for example, or real property the parties purchased during the marriage. Regardless of title (i.e., whose name is listed on a respective account or deed) property may well be denominated as marital. Moreover, a husband or wife may be entitled to financial support from the other party based on their historic incomes and standard of living. Even if, ultimately, one spouse is unlikely to receive alimony, he or she may succeed on a claim for temporary, post-separation support. This form of financial support may have significant impact on a newly separated spouse having to shoulder all the monthly expenses.

How do marital property and financial support from one spouse to another relate to absolute divorce? N.C. Gen. Stat. § 50-11 and relevant case law make plain that unless an action asserting one’s right to alimony, equitable distribution (dividing the marital property between the parties), or both has been made prior to the judgment for absolute divorce, the parties lose the ability to assert those claims. With respect to alimony, “[w]hen a party has secured an absolute divorce, it is beyond the power of the court thereafter to enter an order for alimony.” Mitchell v. Mitchell, 270 N.C. 253, 154 S.E.2d 71 (1967). Concerning equitable distribution, “a judgment of absolute divorce destroys the right to equitable distribution unless the right is asserted prior to judgment of absolute divorce.” Howell v. Howell, 321 N.C. 87, 361 S.E.2d. 585 (1987).

The message is simply this: do not assume the simple filing of a petition for absolute divorce will be a quick fix to your marital woes. Perhaps, after talking it over with your attorney, you will learn you have significant rights that need tending to first. This may well accrue to your benefit.

Charlotte Divorce Lawyer and Family Law Attorney

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Disclaimer: The information contained in this website has been prepared by the Law Firm of David Christopher Herring, PLLC. The website and its blog are intended for informational purposes only and are not, in any way, considered legal advice.

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