Charlotte Divorce Lawyer Blog

Date of Separation Appeal Dismissed as Interlocutory

Published on: October 11, 2011 | On behalf of Arnold & Smith, PLLC

The 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.

Common Law Marriage Appeal Dismissed as Interlocutory

Published on: October 6, 2011 | On behalf of Arnold & Smith, PLLC

The 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.

Same-Sex Marriage Okay with Most in North Carolina?

Published on: October 4, 2011 | On behalf of Arnold & Smith, PLLC

As 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.

Divorce No More?

Published on: September 29, 2011 | On behalf of Arnold & Smith, PLLC

According to a report by Reuters (‘Til 2013 do us part? Mexico mulls 2-year marriage), legislators in Mexico City are considering the concept of temporary marriage licenses. The new law would allow the couple to, on the front end, decide on how long their marriage would be. The minimum duration of of a marriage contract would be for two years – renewable upon the election of the couple. The couple would also decide, on the front end, how children and property would be handled if the contract is not renewed.

Divorce rates in Mexico City are much higher than in other parts of the country. In Mexico City, approximately half of the marriages end in divorce – often within the first two years.

View and Print our Charlotte Divorce Lawyer Blog Family Law Newsletter – Fall 2011

Published on: September 27, 2011 | On behalf of Arnold & Smith, PLLC

In this issue of the Charlotte Divorce Lawyer Blog Family Law Newsletter we take a look at information garnered from census data going all the way back to the 1940s. The U.S. Census Bureau has copmpiled a new report which evaluates marriage and divorce in America. We also look at a case out of Georgia where the Supreme Court upheld a divorce agreement – even when the circumstances changed. Also, a court in Virgina recently ruled that a husband could pay his wife by transferring some of his retirement benefits to her rather than transferring cash. Finally, we take note of a case out of Connecticut which ruled, essentially, that a postnuptial agreement must be “fair” at the time of the divorce.

Click here to view and print our Charlotte Divorce Attorney Blog Family Law Newsletter – Fall 2011:

CHARLOTTE DIVORCE LAWYER BLOG FAMILY LAW NEWSLETTER – FALL 2011

Avoid Divorce by Spending Time Apart?

Published on: September 22, 2011 | On behalf of Arnold & Smith, PLLC

According to a recent article on Yahoo, absence truly can make the heart grow fonder. The article examines a journalist who has been married for 23 years. According to her, the key to their long marriage and avoiding divorce is simply taking separate summer vacations each year. She would go to work as a camp counselor while her husband would work on projects at home. After she spends seven weeks away, their marriage seems stronger than ever.

Depending on the couple, the time away can vary widely. Not every spouse is comfortable spending seven weeks away each summer. For some couples it can be as simple as a weekend getaway with the guys or girls. For other couples, it may be a new hobby which requires a bit of time away from the other spouse. The author notes that the key is having separate adventures and pursuits from your spouse, rather than separate lives.

The author goes on to note that, true to the adage, missing your spouse can be a powerful aphrodisiac – absence makes the heart grow fonder.

Some couples take it much further, going so far as to divide their time between two separate homes. In 2006, there were 3.8 million married couples who were considered “living apart together.” This can work if two people have different desires for their day to day lives. For example, if a couple does not see eye to eye about how to keep the house, decorate and the like then it may be easier for them to have separate primary residences.

A bit of distance can improve self reliance and spouses will sometimes fill roles which are traditionally male or female. The challenge is, though, that too much self reliance can make the notion of divorce more appealing and more palatable.

Is Infidelity in the Eye of the Beholder?

Published on: September 20, 2011 | On behalf of Arnold & Smith, PLLC

Not necessarily. But, according to a new study, your view of whether a physical affair is worse than an emotional affair may depend on your gender. This study, out of the University of Scranton, notes that men tend to be more focused on the sexual aspect of the affair, women tend to ask whether their spouse is in love with the other woman. Interestingly, this study was based upon “data” derived from a reality television show called “Cheaters.”

Out of 75 affair confrontations on the show, 57 percent of men asked about sex whereas only 29 percent of women asked about sex. On the other hand, 71 percent of women asked if the cheater was in love with the other man while only 43 percent of men asked whether they were in love.

This researcher is apparently very influenced by popular culture. He first became interested in this issue when he watched the 2004 film “Closer.”

This researcher is convinced that his research is accurate. He feels that evolutionary biology is on his side, noting that men have never been able to 100 percent certain that a child was actually theirs. So, he feels that the concern over whether their spouse had sex with the other women is completely natural. On the other hand, women have always been more threatened that their man would form an emotional bond with a different partner – focusing their time, commitment and protection to the other woman.

Set Aside Separation Agreement Appeal Dismissed as Interlocutory

Published on: September 15, 2011 | On behalf of Arnold & Smith, PLLC

The North Carolina Court of Appeals dismissed an appeal as interlocutory. In this case, the Wife filed an action to set aside a Separation Agreement and establish the parties’ date of separation. The Wife also raised claims for equitable distribution, post separation support and alimony. At hearing the trial Court set aside the Separation Agreement and Property Settlement.

The Husband moved pursuant to North Carolina Rules of Civil Procedure Rule 54(b) that the trial Court certify the Order as immediately appealable. The trial Court also noted in its Order that the Order affected a substantial right of Husband. It seems that the trial Court tried to set the matter up for immediate appeal by all means available to it.

The North Carolina Court of Appeals dismissed the appeal as interlocutory by finding that the matter did not satisfy the second prong of North Carolina Rules of Civil Procedure Rule 54(b), which requires that the ruling be final with respect to one, but not all, of the matters pending in the case. The Court found it compelling that none of the other pending claims in the case could be determined without first determining the request to set aside the Separation Agreement.

Modification of Child Custody Decision Rendered by North Carolina Court of Appeals

Published on: September 13, 2011 | On behalf of Arnold & Smith, PLLC

The North Carolina Court of Appeals rendered an opinion in a North Carolina child custody case. In this case, Mother and Father were parties to a separation agreement. This separation agreement was incorporated into the Court’s Decree of Absolute Divorce which terminated the parties’ marriage and turned the child custody terms of the separation agreement into an order of the Court.

Only a month after the entry of the Decree of Absolute Divorce, Mother filed a motion to modify child custody. Mother asked that Father have no visitation. At the hearing on Mother’s motion to modify child custody, Mother alleged that Father had physically and sexually abused the minor child.

The trial Court found that neither Father nor Mother had proved that there had been a substantial change in circumstances which would support a modification of child custody and dismissed both motions to modify child custody. Mother appealed and took the position that some of the trial Court’s findings of fact were not supported by competent evidence.

Fewer Children for Americans?

Published on: September 8, 2011 | On behalf of Arnold & Smith, PLLC

According to an article (The No-Baby Boom) by Details Magazine on Yahoo!, America is experiencing a significant decrease in the number of children being born. Generally seen as being attributable to the poor economy, children now tend to be seen as an economic liability rather than the free labor they once were when our economy was more dependent on farms. So, what is going to happen to our society if we continue to experience decline in reproduction? Is it possible that we will begin to experience significant population reduction?