Family Law
No area of law is more pervasive than Family Law because it includes a wide array of issues ranging from marriage, child custody, child support, divorce, post-separation support, alimony and domestic violence. At some time or another some issue under the umbrella of Family Law will have an effect, directly or indirectly on all persons, regardless of race, economic class, education or other characteristic by which society attempts to classify and differentiate people. John K. Deaton is experienced in most all aspects of family law which impacts people’s lives and is able to assist clients with advice on the many facets of family law and provide competent counseling as to your rights and responsibilities with regard to these issues and advocacy in negotiating various aspects of the family law arena or litigating issues that cannot be resolved through other means. Please continue reading below for more information on specific issues of Family Law and ways Law Office of John K. Deaton can assist you with your problems, issues, or questions.
Marriage
One of the most important decisions a person makes is the decision to marry. For most, marriage is a religious, spiritual, or deeply personal emotional commitment based on a couple’s love and trust for each other. Just ask any bride or groom on their wedding day and the last thing on their mind is that they are getting ready to enter into a legal relationship, very much similar to a contractual agreement, that carries with it many rights and obligations as well as other legal consequences. For good or bad, the law in North Carolina will impart or impose these rights and responsibilities. Following is a synopsis of the requirements for a valid marriage and some of the legal consequences created by marriage.
Can I get married? Not just any two people may be legally married in North Carolina. Generally you must be at least 18 years old to get married. Minors aged 16-18 may get married provided they have the consent of his or her parents or legal guardians. Minors aged 14-16 years old may get married if the female is pregnant or gives birth and there is a court order issued by a District Court judge authorizing the marriage. In addition to age, North Carolina also prohibits marriage between any persons closer kin to one another than first cousins. Yes, believe it or not, first cousins may marry. Additionally, marriage must be between a man and woman. North Carolina does not recognize same-sex marriage, even if said marriage occurred in another state that allows such unions.
What about Common Law Marriage? A common misperception in North Carolina is that once two people live together for an amount of time they are considered to have a common law marriage or “marriage by consent.” North Carolina does not have any method to establish a common law marriage for residents of North Carolina, however; if a couple have lived together and/or engaged in conduct in another state which would be recognized in that state as common law marriage, North Carolina may recognize that marriage as valid.
How do I get married? The first step to getting married is to obtain a marriage license from the Office of the Register of Deeds in the county in which the marriage will take place. There is no waiting period for obtaining a marriage license, and the license is good for 60 days from the date it is issued. The second step is the marriage ceremony. Ceremonies may be religious or civil. Magistrates are the only civil officials that are authorized to perform marriages. Religious ceremonies may be performed by any ordained minister or is performed in accordance with the recognized practices of any religious denomination or federally or state recognized Indian Nation or Tribe. Regardless of whether the marriage ceremony is religious or civil, there must be two witnesses at the marriage ceremony. The third and final step is to complete the Marriage Certificate and return it to the register of deeds who issued the license. The marriage certificate contains the couple’s names and addresses, the date of marriage, the county issuing the marriage license and the date of the license. The magistrate, minister or other person that conducts the wedding should sign the marriage certificate and have the two witnesses sign. After all required signatures are obtained, the certificate is returned for recording to the Register of Deeds office. Next stop…..Honeymoon!
WHAT HAVE I GOTTEN MYSELF INTO?
The legal rights and responsibilities of married persons
Inheritance Rights: As soon as husband and wife marry, each spouse is eligible to share in the estate of the other upon death. If a spouse dies without a Last Will and Testament, the North Carolina statutes set forth a method for distributing the estate. As the surviving spouse is concerned, this statutory scheme of distribution called Intestate Succession means that the spouse gets at least the first $ 30,000 or $ 50,000 depending on the status of children, worth of personal property (all property that is not real estate) and either one-third or one-half of all real estate, again depending on the existence of children. Additionally, a surviving spouse is entitled to a “Year’s Allowance” from the estate of the deceased spouse, which is a sum of money or property which is distributed immediately to the surviving spouse after death and application to the Clerk. In addition to the rights of a surviving spouse under intestate succession, the surviving spouse also has other rights in an to the estate of the deceased spouse such as taking an Elective Life Estate or “Forced Share” of property. Please see our information on Wills and Estate Planning for more detailed information.
What about the Wife’s new name? The wife may take the surname of her new husband after marriage without any formal legal proceedings. However, the Wife is not legally obligated to change her name and may continue using her maiden name, previous married name, or may use a hyphenated name. All of this can be accomplished without the necessity of any legal proceedings, but simply through continuing the use of her name as prior to marriage or updating her identifying documents to reflect her new name, such as driver’s license, social security card, etc.
What about our children’s names? Up until the early 1980s, a child born to a married couple in North Carolina had to have the surname of the child’s father. As a result of a lawsuit challenging that law, the North Carolina General Assembly re-wrote the law on children’s names to provide that upon agreement of the parents, the child could be given any surname they wished. Absent agreement between mom and dad, the surname of the husband shall be entered on the child’s birth certificate.
Duties of Support? Most people think about spousal support in terms of alimony after separation or divorce. This is certainly the most common circumstance in which one spouse seeks support from the other. Another area in which support becomes an issue prior to separation and divorce is under the “Doctrine of Necessaries.” This is a doctrine in the law which has been carried forward from the common law and provides that one spouse may be obligated to pay the debts of his or her spouse for “necessaries” if the receiving spouse cannot pay. The most common circumstance for this doctrine to apply is for medical bills; however, the North Carolina courts have ruled in favor of creditors of items of merchandise, such as food, clothing, shelter, furnishings, etc. The doctrine of necessaries is very dependent on each couple’s facts and circumstances, including the socioeconomic position of the family and therefore, no general rule of thumb can be set out. The outcome of each case would be very dependent on the specific facts.
PREMARITAL AGREEMENTS
While the above rights and obligations begin with the marriage ceremony, they do not all end just because the marriage does. Fortunately, many of the obligations imposed by the law may be modified by a premarital agreement (more commonly referred to by the public as “prenuptial agreement” or “prenup”) entered into between the soon to be spouses. Premarital Agreements are controlled by Chapter 52B of the North Carolina General Statutes. Below are highlights of the law on premarital agreements.
What is required for a valid Premarital Agreement? The only requirement under the statute is that the agreement be in writing and signed by both parties. However, while not specifically required by North Carolina’s Uniform Premarital Agreement Act, the better practice would be to have the written agreement signed and the parties’ signatures acknowledged by a Notary Public because of the agreements effect on Equitable Distribution rights of the parties.
What can the Premarital Agreement do for me? Parties may contract regarding their rights that arise during the marriage and modify the effects of separation and divorce as would otherwise apply by law. For instance, parties may waive his or her potential rights to alimony and/or post separation support. Parties may also contract with regard to property rights to keep certain items of property owned prior to marriage from becoming marital property subject to division. Parties may also waive any rights to surviving spouse benefits after death of a party and rights of a surviving spouse to administer the Estate of the other.
What are limitations to the Premarital Agreement? A premarital agreement may not be enforced if it is against public policy, which basically means that a court will not enforce terms of a premarital agreement which leaves one spouse destitute and dependent on the State for support. Further, the premarital agreement, to be enforced would have to be based on full financial disclosure between the parties prior to execution of the agreement.
What to do when the Honeymoon is over and your marriage is on the rocks?
Marriage Counseling I feel that one reason the divorce rate in our country is so high is that married couples are too quick to throw in the towel and they forget about the “for better or worse” part of their marriage vows. Marriage is certainly not easy and when you factor in the stress of raising kids coupled with the financial burdens in a distressed economy, it is easy to see these stressors reveal themselves in arguments between spouses. Often times these stressors can be effectively dealt with if couples will stop and try to listen to and consider the feelings, thoughts and opinions of the other spouse. I encourage all couples, prior to making the decision to separate to discuss and consider setting up counseling with an experienced marriage counselor, pastor, or even friend couples who may offer useful insight and advice in dealing with the “for worse” part of marriage.
Legal Counseling: While often times couples are separated by the time one or the other seek the advice of a family law attorney, this does not have to be the case. An experienced family law attorney can provide counsel to you in preparation for a separation which can insure that your legal rights are protected, and with a little advice, the transition from a married couple to a separate couple may be a little easier. At the very least, speaking with an attorney before the actual physical separation will educate people about some of the issues which will have to be dealt with as part of the separation. This knowledge can be a real eye opener to couples who may be a little quick to throw in the towel.
Ok, the marriage relationship is not salvageable, what are my options?
When the marriage is over, there are two primary paths couples take toward resolution of all the issues surrounding the marriage, separation and subsequent divorce. The quickest, least expensive, and as a general rule most amicable method for resolving issues between husband and wife is the negotiation, preparation and execution of a Separation and Property Settlement Agreement. The other path leads through the court system, and in the end will accomplish the same things as the separation agreement but with court oversight. Resorting to court will undoubtedly extend greatly the time between physical separation and final resolution and will greatly increase the cost of reaching that final resolution. The most common claims for relief that a person seeks through the court at the end of the marriage would be claims for Divorce from Bed and Board, Child Custody, Child Support, Equitable Distribution, and Post-Separation Support/Alimony. Contact us for more information or advice with regard to your specific situation.
Marriage
One of the most important decisions a person makes is the decision to marry. For most, marriage is a religious, spiritual, or deeply personal emotional commitment based on a couple’s love and trust for each other. Just ask any bride or groom on their wedding day and the last thing on their mind is that they are getting ready to enter into a legal relationship, very much similar to a contractual agreement, that carries with it many rights and obligations as well as other legal consequences. For good or bad, the law in North Carolina will impart or impose these rights and responsibilities. Following is a synopsis of the requirements for a valid marriage and some of the legal consequences created by marriage.
Can I get married? Not just any two people may be legally married in North Carolina. Generally you must be at least 18 years old to get married. Minors aged 16-18 may get married provided they have the consent of his or her parents or legal guardians. Minors aged 14-16 years old may get married if the female is pregnant or gives birth and there is a court order issued by a District Court judge authorizing the marriage. In addition to age, North Carolina also prohibits marriage between any persons closer kin to one another than first cousins. Yes, believe it or not, first cousins may marry. Additionally, marriage must be between a man and woman. North Carolina does not recognize same-sex marriage, even if said marriage occurred in another state that allows such unions.
What about Common Law Marriage? A common misperception in North Carolina is that once two people live together for an amount of time they are considered to have a common law marriage or “marriage by consent.” North Carolina does not have any method to establish a common law marriage for residents of North Carolina, however; if a couple have lived together and/or engaged in conduct in another state which would be recognized in that state as common law marriage, North Carolina may recognize that marriage as valid.
How do I get married? The first step to getting married is to obtain a marriage license from the Office of the Register of Deeds in the county in which the marriage will take place. There is no waiting period for obtaining a marriage license, and the license is good for 60 days from the date it is issued. The second step is the marriage ceremony. Ceremonies may be religious or civil. Magistrates are the only civil officials that are authorized to perform marriages. Religious ceremonies may be performed by any ordained minister or is performed in accordance with the recognized practices of any religious denomination or federally or state recognized Indian Nation or Tribe. Regardless of whether the marriage ceremony is religious or civil, there must be two witnesses at the marriage ceremony. The third and final step is to complete the Marriage Certificate and return it to the register of deeds who issued the license. The marriage certificate contains the couple’s names and addresses, the date of marriage, the county issuing the marriage license and the date of the license. The magistrate, minister or other person that conducts the wedding should sign the marriage certificate and have the two witnesses sign. After all required signatures are obtained, the certificate is returned for recording to the Register of Deeds office. Next stop…..Honeymoon!
WHAT HAVE I GOTTEN MYSELF INTO?
The legal rights and responsibilities of married persons
Inheritance Rights: As soon as husband and wife marry, each spouse is eligible to share in the estate of the other upon death. If a spouse dies without a Last Will and Testament, the North Carolina statutes set forth a method for distributing the estate. As the surviving spouse is concerned, this statutory scheme of distribution called Intestate Succession means that the spouse gets at least the first $ 30,000 or $ 50,000 depending on the status of children, worth of personal property (all property that is not real estate) and either one-third or one-half of all real estate, again depending on the existence of children. Additionally, a surviving spouse is entitled to a “Year’s Allowance” from the estate of the deceased spouse, which is a sum of money or property which is distributed immediately to the surviving spouse after death and application to the Clerk. In addition to the rights of a surviving spouse under intestate succession, the surviving spouse also has other rights in an to the estate of the deceased spouse such as taking an Elective Life Estate or “Forced Share” of property. Please see our information on Wills and Estate Planning for more detailed information.
What about the Wife’s new name? The wife may take the surname of her new husband after marriage without any formal legal proceedings. However, the Wife is not legally obligated to change her name and may continue using her maiden name, previous married name, or may use a hyphenated name. All of this can be accomplished without the necessity of any legal proceedings, but simply through continuing the use of her name as prior to marriage or updating her identifying documents to reflect her new name, such as driver’s license, social security card, etc.
What about our children’s names? Up until the early 1980s, a child born to a married couple in North Carolina had to have the surname of the child’s father. As a result of a lawsuit challenging that law, the North Carolina General Assembly re-wrote the law on children’s names to provide that upon agreement of the parents, the child could be given any surname they wished. Absent agreement between mom and dad, the surname of the husband shall be entered on the child’s birth certificate.
Duties of Support? Most people think about spousal support in terms of alimony after separation or divorce. This is certainly the most common circumstance in which one spouse seeks support from the other. Another area in which support becomes an issue prior to separation and divorce is under the “Doctrine of Necessaries.” This is a doctrine in the law which has been carried forward from the common law and provides that one spouse may be obligated to pay the debts of his or her spouse for “necessaries” if the receiving spouse cannot pay. The most common circumstance for this doctrine to apply is for medical bills; however, the North Carolina courts have ruled in favor of creditors of items of merchandise, such as food, clothing, shelter, furnishings, etc. The doctrine of necessaries is very dependent on each couple’s facts and circumstances, including the socioeconomic position of the family and therefore, no general rule of thumb can be set out. The outcome of each case would be very dependent on the specific facts.
PREMARITAL AGREEMENTS
While the above rights and obligations begin with the marriage ceremony, they do not all end just because the marriage does. Fortunately, many of the obligations imposed by the law may be modified by a premarital agreement (more commonly referred to by the public as “prenuptial agreement” or “prenup”) entered into between the soon to be spouses. Premarital Agreements are controlled by Chapter 52B of the North Carolina General Statutes. Below are highlights of the law on premarital agreements.
What is required for a valid Premarital Agreement? The only requirement under the statute is that the agreement be in writing and signed by both parties. However, while not specifically required by North Carolina’s Uniform Premarital Agreement Act, the better practice would be to have the written agreement signed and the parties’ signatures acknowledged by a Notary Public because of the agreements effect on Equitable Distribution rights of the parties.
What can the Premarital Agreement do for me? Parties may contract regarding their rights that arise during the marriage and modify the effects of separation and divorce as would otherwise apply by law. For instance, parties may waive his or her potential rights to alimony and/or post separation support. Parties may also contract with regard to property rights to keep certain items of property owned prior to marriage from becoming marital property subject to division. Parties may also waive any rights to surviving spouse benefits after death of a party and rights of a surviving spouse to administer the Estate of the other.
What are limitations to the Premarital Agreement? A premarital agreement may not be enforced if it is against public policy, which basically means that a court will not enforce terms of a premarital agreement which leaves one spouse destitute and dependent on the State for support. Further, the premarital agreement, to be enforced would have to be based on full financial disclosure between the parties prior to execution of the agreement.
What to do when the Honeymoon is over and your marriage is on the rocks?
Marriage Counseling I feel that one reason the divorce rate in our country is so high is that married couples are too quick to throw in the towel and they forget about the “for better or worse” part of their marriage vows. Marriage is certainly not easy and when you factor in the stress of raising kids coupled with the financial burdens in a distressed economy, it is easy to see these stressors reveal themselves in arguments between spouses. Often times these stressors can be effectively dealt with if couples will stop and try to listen to and consider the feelings, thoughts and opinions of the other spouse. I encourage all couples, prior to making the decision to separate to discuss and consider setting up counseling with an experienced marriage counselor, pastor, or even friend couples who may offer useful insight and advice in dealing with the “for worse” part of marriage.
Legal Counseling: While often times couples are separated by the time one or the other seek the advice of a family law attorney, this does not have to be the case. An experienced family law attorney can provide counsel to you in preparation for a separation which can insure that your legal rights are protected, and with a little advice, the transition from a married couple to a separate couple may be a little easier. At the very least, speaking with an attorney before the actual physical separation will educate people about some of the issues which will have to be dealt with as part of the separation. This knowledge can be a real eye opener to couples who may be a little quick to throw in the towel.
Ok, the marriage relationship is not salvageable, what are my options?
When the marriage is over, there are two primary paths couples take toward resolution of all the issues surrounding the marriage, separation and subsequent divorce. The quickest, least expensive, and as a general rule most amicable method for resolving issues between husband and wife is the negotiation, preparation and execution of a Separation and Property Settlement Agreement. The other path leads through the court system, and in the end will accomplish the same things as the separation agreement but with court oversight. Resorting to court will undoubtedly extend greatly the time between physical separation and final resolution and will greatly increase the cost of reaching that final resolution. The most common claims for relief that a person seeks through the court at the end of the marriage would be claims for Divorce from Bed and Board, Child Custody, Child Support, Equitable Distribution, and Post-Separation Support/Alimony. Contact us for more information or advice with regard to your specific situation.
323 North Main Street Troy, North Carolina 27371 Ph. 910.576.3999 Fax. 910.576.8181 firminfo@deatonlawnc.com
Disclaimer: This web site is designed to provide general information only. The information provided is presented for informational purposes and should not be construed to constitute legal advice nor is it intended to create an attorney/client relationship. Our law offices require the execution of a written retainer agreement before any legal services are rendered.
