Family Law Case Update Cheryl Howell June 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 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 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, 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