Assigning one judge to the matter is the cornerstone of any family court system. Having one judge assigned to all of a family’s matter allows that judge to familiarize themselves with the specific needs of that family and better address the issues specific to that family. There can be many issues facing a family going through dissolution of the marriage – child support, divorce from bed and board, child custody, alimony, equitable distribution, and absolute divorce are several such claims that may be prompted by a separation of the parties. Pursuant to these claims, there are numerous motions and/or interim solutions which could become relevant based upon the circumstance. For instance, ex-parte child custody, temporary child custody and child support, interim distribution, temporary restraining orders, post-separation support, motions and orders to show cause in contempt, and/or motions to compel may become necessary. Many of the facts in each motion or claim may overlap, such as: Post-separation support and alimony, or temporary child custody and child custody. In order to prevent disparate outcomes, long recounts of a family’s history, and uneven applications of the law between claims and so as to provide the opportunity for tailored rulings specific to the details of a particular family, the family court system requires that one judge hear all the issues of one family whenever possible. Having one judge assigned to all of a family’s matter allows that judge to familiarize themselves with the specific needs of that family and better address the issues specific to that family.

In addition, when one judge is assigned to a matter, that matter stays on the judge’s calendar until resolved. Parties are unable to continue a matter so as to get a “favorable” judge or to delay a matter simply to cause the other party hardship. Furthermore, one of the penultimate goals of family courts are to resolve the issues of a family within one year. This one-year goal coupled with the restrictions on continuances cuts down the amount of continuances which will be allowed or tolerated by the Court. According to the 2011 Annual Report on NC’s Unified Family Court Programs which looked at the duration and length of cases over a seven year period, in counties with a family court system, only 22 percent of domestic cases were not resolved within a year as compared to 47 percent in non-family court counties. The seven year average age for cases in family court is 108 days whereas, in non-family court jurisdictions, the average age over the last seven years was 332 days.

Many family courts employ a simple and predictable calendaring system. For instance in New Hanover County, North Carolina, judges typically have a two-week session in each month dedicated to family issues. Each judge’s session is published in advance and the cases on the calendar are organized at an advanced (generally) calendar call. If a matter is not able to be heard during that session, the family court administrators move it to the next session and it remains on the calendar from session to session until it is heard by the Court. For smaller or quicker matters, some judge’s will schedule shorter sessions when time allows.

Since 1999, Family Courts in North Carolina have been providing parents with tailored and efficient resolution of their family law issues. Despite the numerous advantages of a family court system, as of late the family court has been under attack in the North Carolina legislature. Recent moves by the legislature to cut funding to the family court system in North Carolina only means an increase in inefficiency, time, and hardship for the family’s of North Carolina. Rice Law, PLLC, encourages all parents and spouses in North Carolina to write your state representative and let them know that funding for family courts in North Carolina (as well as other specialized courts in North Carolina) should not be cut when there are proven advantages to them being retained.

This past week the North Carolina Court of Appeals heard arguments regarding the constitutionality of North Carolina’s Alienation of Affection and Criminal Conversation causes of action.

An Alienation of Affection action is one in which a spouse files a lawsuit against their spouses’ paramour for destroying their marriage. Criminal Conversation is filed against a paramour for having sexual relations with the spouse. The actions are commonly referred to as a heart-balm actions and have been done away with in the majority of other states.

The Court of Appeals held oral arguments in the matter at Wake Forrest Law School and many law students were in attendance for the arguments. Generally, a few months will pass before the Court of Appeals completes their opinion and releases it.

On the one hand, it is argued that the alienation of affection law violates a fundamental right to privacy and free speech; however, the counter-argument is that one person’s rights do not extend to the right to injure another and that adultery causes injury to the other spouse in the marriage and to the institution of marriage itself – an institution which the government has a bona fide interest in protecting.

In 2003, the United States Supreme Court held a Texas statute banning consensual sex between two adults of the same gender pursuant to the argument that there was a fundamental right to privacy in such action between two consenting adults. However, the question here is what happens to that fundamental right when a third party is involved.

Marriage is the penultimate partnership in our society. Like business partnership, marriages are created and destroy regularly, sometimes by partners and sometimes by others outside the partnership. In business, a company can sue a third party for interfering with a contractual relationship, Alienation of Affection and Criminal Conversation afford the same ability to partners in the most important business of all, marriage.

If you believe you might have a claim against a paramour for alienation of affection or criminal conversation, please consult with a licensed attorney in your jurisdiction.

Whether you are gay, straight, or upside down, the amendment appears likely to have little significant effect on your life if passed. Same-sex marriage is already not allowed or recognized by North Carolina and, under contract law, same-sex partners are now and will still be afforded many of the more meaningful protections enjoyed by married couples.

Voting against the amendment would not legalize same-sex marriage in North Carolina. Currently, same-sex marriage is not recognized in North Carolina and, as previously mentioned in another blog, the only significant protections in North Carolina for same-sex couples in the context of their cohabitation is contract law. It appears that those protections and actions under contract law that would allow same-sex couples to sue each other over property or other relationship related matters would remain unchanged. Even if the amendment is passed, same-sex couples will still be able to authorize each other to handle financial matters by executing a power of attorney, or appoint each other the decision-maker regard health care decisions if one becomes incapacitated through a health care power of attorney. Same-sex couples could still hold joint checking accounts and could still contract to provide for the protections many married people have in place. The protections allowed with respect to cohabitation rights and contract law are important to same-sex partners and married couples alike and, of course, both should make sure to execute and formalize those protections before an issue arises calling for those protections.

Despite North Carolina’s apparent lack of tolerance toward those cohabitating in the state – there were 144,000 unmarried couples living together in North Carolina according to the 2000 census – and there are some protections for cohabitants under contract, quasi-contract, and quantum meruit legal theories in North Carolina.

In the 1988 case of Suggs v. Norris, addressed by the North Carolina Court of Appeals, Judge Wells found that while the Court does not approve of cohabitation, unmarried persons who are cohabitating may enter into enforceable contracts with each other and that “agreements regarding the finances and property of an unmarried but cohabitating couple, whether express or implied, are enforceable as long as sexual services or promises thereof do not provide the consideration.” In essence, a person who has provided non-sexual services or support during a relationship with the understanding that they would receive compensation, may be able to recover for the implied or agreed upon compensation in that agreement. This can be accomplished under contract law or under a theory of quantum meruit (also known as unjust enrichment or equity).

However, once married such contracts may not be available.  In 1993 Judge Wells penned another opinion in Kuder v. Schroder. The Kuder case involved a spouse who had an agreement with her husband to support him through school with the understanding that upon his completion of school, he would provide the total family support and allow her to be a stay-at-home mother and housekeeper. In his opinion, Judge Wells stated that, “we are sympathetic to her apparent dilemma, and certainly would not condone defendant’s apparent knavish ingratitude, but we do not find support in the law of this State for such a claim and therefore hold that the trial court correctly dismissed plaintiff’s claims” and that each spouse owes a duty to the other during the marriage which could not be modified by agreement or contract. Judge Wells reasoned that the Kuder matter was distinguishable from that in Suggs because “[In Suggs,] we sanctioned a claim for remuneration for services performed in a business (farming) enterprise by a person who was cohabiting with, but not married to, a deceased cohabitor. The facts and ruling in [the Suggs] case are in no sense relevant to the facts and issues presented in the case now before us.” In an interesting dissent, Judge Greene disagreed with the majority opinion reasoning that if unmarried persons can contract for services and support, why should not married couples be allowed to modify their duties of support in the same way. Judge Greene stated, “the alternative leaves the non-student supporting spouse with virtually no remedy” because the non-student spouse was the supporting spouse during the marriage making alimony unobtainable and that while the non-student spouse’s efforts to help in the educational pursuits of the other spouse may be a factor in an equitable distribution claim, “this remedy is of little value in cases where the student spouse leaves the supporting spouse immediately or soon after obtaining his professional license” because the sacrifice and debt associated with supporting the spouse in their educational pursuits will likely leave little or no marital property of any value by which the Court could compensate the non-student spouse.

Another potential claim for a cohabiter is a claim for a breach of a promise to marry.

In conclusion, unmarried couples in North Carolina may have a remedy with regard to the shared finances, property, and efforts of the relationship under contract, quasi-contract (including unjust enrichment), quantum meruit, trust and tort theories of North Carolina law.

Disclaimer: Seek legal advice from an attorney licensed to practice in your jurisdiction.

North Carolina has adopted the income shares model for child support. Child support is a shared parental responsibility and the child should receive that amount of each parents’ income that the child would receive were the parents still raising the child together.

The North Carolina Child Support Guidelines (“the guidelines”) provide a relatively fair and practical method for determining each parent’s child support obligation. They are based on a mathematical computation designed to remove the emotional strife associated with the support and needs of a child. The guidelines are adopted by the North Carolina General Statutes in Chapter 50 Section 13.4(c).

However, the fairness and equity built into the Guidelines is directly dependent upon their proper application. Incorrect application of the guidelines can and does result in inequitable results. One way to ensure proper application of the Guidelines is to make sure you explain your gross income to your attorney and that he or she explains it to the Court.

What is Gross Income

Gross income is income from ALL sources. This includes: wages, bonuses, dividends, retirement income, income from rental property, income from trusts, gifts, alimony, and essentially any other monies to which a parent has access.

Under the guidelines, benefits received from means-tested public assistance programs and some other limited sources of money are not included as gross income. These include: food stamps, SSI income, TANF income, child support from another parent of another child, employer contributions to Social Security, Medicare, and contributions by employers to third parties for health, disability, life insurance, or retirement which are not withheld or deducted from the employee’s wages.

 Overtime and Bonus Pay Indexing

The guidelines state that “when income is received on an irregular, non-recurring, or one-time basis, the court may average or prorate the income over a specified period of time or require an obligor to pay as child support a percentage of his or her non-recurring income that is equivalent to the percentage of his or her recurring income paid for child support.” (emphasis added).

Thus, if gross income of the parties is calculated leaving out overtime and bonus pay under the appropriate worksheet, then the resulting monthly child support payment would reflect some number which, if divided by the non-custodial parent’s gross income as calculated in the worksheet, would result in a percentage that could then be ordered to be paid of the overtime and/or bonus pay.

 Open for interpretation is whether other adjustments, such as work-related child care, insurance, and extraordinary expenses should be included when determining the percentage of overtime to be paid. In fairness, to include those adjustments in a determination of the percentage of overtime and/or bonus pay to be paid, is in essence granting two separate sets of adjustments when only one is warranted.

Benefits to Indexing

 Indexing overtime and bonus pay to a percentage has the following benefits to the parents and child:

1. It need not be paid by the obligor on a monthly basis and can be ordered paid as received lessening the likelihood that the obligor falls behind in his/her payments;
2. If the obligor’s overtime is reduced by his employer, the obligor is not forced to file a motion to modify or be subject to a show cause order in contempt for failing to pay that which he no longer has the ability to pay;
3. If the obligor’s employer increases his overtime, he pays more for the benefit of his child without the need for the obligee to file a motion to modify;
4. There is less of a chance that the obligor will fall behind in his child support payments due to fluctuating gross income because the income most likely to fluctuate is indexed to a percentage;
5. It is not the most often used provision of the Guidelines; and
6. Generally, an order indexing bonus or overtime pay to a percentage will include a provision requiring the parties to share income information on a regular basis thereby making significant changes in income of the other parent evident which allows both parents to react quickly to said significant changes in normal recurring income so as to better capture child support.

In conclusion, if an income shares model is desired in North Carolina, then indexing overtime and bonus pay achieves this goal fairly and reasonably to the maximum benefit of the child. It captures money that would otherwise not be collected for the child and prevents unnecessary litigation by accounting for uncontrollable employer dictated reductions in bonus and overtime pay. If you have a child support issue, make sure to hire a licensed attorney in your jurisdiction to help you and provide you with appropriate advice pursuant to the laws of that jurisdiction. If you have a child support issue in North Carolina, make sure to tell that attorney where exactly your income is coming from so that he can advise you whether indexing your bonus and overtime pay is appropriate in your situation.

An adoption tax credit for qualified adoption expenses is available to middle income families pursuant to Section 23 of the United States Internal Revenue Code. The adoption tax credit encourages adoption by helping families afford the attorney fees, court costs, and other expenses associated with adoptions and is now more accessible due to new legislation contained in the Health Care and Education Reconcilliation Act of 2010. The Credit does not apply to Stepparent adoptions. Besides the Credit, if your employer paid qualifying adoption expenses, they may be excludable from your gross income.

For purposes of this topic it is best to first differentiate the different types of adoption which could be applicable in a particular matter: 1) The Domestic adoption, an adoption within the U.S.; 2) International adoption — where a child born outside the U.S. is brought into the U.S.to live with the adoptive parents; and 3) the adoption of a special needs child.

There is new legislation on the horizon. In both the Senate and the House of Representatives are Bills that could help promote adoption even further. Thereby promoting adoption for children so as to provide them with better lives and better future. H.R. 213: Adoption Tax Relief Guarantee Act of 2009.

In 2009, the tax credit for adoption was increased amounting to $12,150.00. Now H.R. 3590 includes a provision to extend the adoption tax credit until December 2011 and it has increased tax credit to $13,170.00 for adoptions made after January 2010 and has an adjustment for inflation in 2011. This bill also allows the tax credit to be refundable. However, pursuant to the middle income family tax relief purpose of the Adoption tax credit;If your AGI is more than $182,180.00 then the tax credit amount is phased out and if your AGI is more than $221,180.00 then you cannot claim the tax credit or the exclusion.

In order to qualify, a person seeking to claim the tax creditmust adopt a child and pay the applicable expenses of the adoption, these expenses may include many none qualifying expenses as well as qualifying expenses. Nonqualified expenses are those that violate state or federal law, expenses for carrying out any surrogate parenting arrangement, expenses for the adoption of a spouse’s child (hence, stepparent adoptions do not qualify for the adoption tax credit), expenses for which you have received funds under any federal, state or local program, expenses allowed as a credit or deduction under any other federal income tax rule, expenses paid or reimbursed by your employer or any other person or organization or those paid before 1997. Given the nature and accessiblilty of the adoption tax credit, adoptions become more affordable for middle income families and children in need of a home are now more likely to be adopted by a family. Adoption is a great option for those persons and couples seeking to start a family and who, by biology or gender, cannot produce a child of their own. There are many children in the Unites States and abroad who could use parents and no longer should the cost of adoption alone hinder good parents from adopting good children.

Author’s Note: The above is presented as general information. It is not exhaustive coverage of this issue but only a general explanation from a layperson’s percpective. The purpose of this article is to inform the non-lawyer who may read current status of the adoption tax credit. The reader interested in learning more should contact an attorney licensed to practice law in their jurisdiction, specifically tax law.

Generally, Joint legal custody means that the two parents consult and decide together what long-term decisions are in the best interest of their child. It is assumed in North Carolina that a fit parent makes decisions that are in their child’s best interest. In a sole custody situation, the parent enjoying sole custody has the authority to make such decisions. In North Carolina, a Court may delegate certain areas and topics regarding decision-making authority to a particular parent, even in the context of joint legal custody. However, according to some North Carolina case law, if a Court delegates all decision-making authority to a single parent, then North Carolina Courts will consider the parent with sole decision-making authority to be in sole custody of the child despite language in the child custody order purporting to convey joint legal custody. These concepts are important for parents to understand because in many joint custody arrangements disagreements arise as to what is in the child’s best interest with regard to their spiritual upbringing.

A North Carolina Court may inquire as to the religious practices of parents to determine the effect of certain religious practices with regard to the physical, mental, and spiritual health of a minor child and may use the information gained as a factor in determining which custody arrangement will best promote the best interests of a child so long as the inquiry is: a limited inquiry related to the impact that the practices of the religion have upon the child and/or the parents’ ability to promote attendance or instruction in a religion. This information may be used as one factor in determining the custody arrangement that serves the child’s best interest so long as the Court does not preference any particular faith or religious instruction in making their determination. Phelps v. Phelps, 337 N.C. 344, 446 S.E.2d 17 (1994).

In Dean, the Court of Appeals stated the “trial court properly considered wife’s failure to take five-year-old child to church and Sunday school, and consideration of such fact did not violate constitutional provisions concerning separation of church and state.” Dean, 32 N.C.App. at 483.

In MacLagan, the North Carolina Court of Appeals went further by declaring proper the decision of the trial court that the father of a child have exclusive decision-making authority over his child’s religious upbringing. The Court of Appeals overcame the mother’s argument that the trial court had shown religious preference in allowing the father (who was Jewish) to be the sole decision-maker as to the child’s religious upbringing as opposed to the mother (who was Christian) by citing the undisputed facts in the trial Court’s record that: 1) the parties had agreed to raise the child in the Jewish faith before they separated; 2) the child was raised in Judaism since the age of three; 3) the child had substantial involvement in her father’s Synagogue; and 4) the child had increased stress and anxiety due to her being raised in two conflicting religions “which have had a detrimental effect on [the child’s] emotional well-being.” MacLagan, 123 N.C.App. at 569-570.

It is noteworthy that the cases cited above, in large part, contain dicta and language to suggest that the inquiry into religious practices may not be the sole determinative factor in either custody or in delineating certain areas of the decision-making authority with regard to spiritual well-being, most of the cases above point out specifically that the trial court did not rely solely on the inquiry into religious practices to make their determination.

Another interesting potential situation regarding this topic is what should a Court do when a child desires to make his/her own decisions regarding their own religious upbringing.

The Constitutional rights of children have been acknowledged by courts all over the United States in a growing number of cases over the last couple decades. Children have protected Constitutional rights with regard to: their religious beliefs, expression, privacy, procedural due process in criminal and civil matters, and even with respect to double jeopardy. However, most of the United States Supreme Court cases recognizing the Constitutional rights of children involves a conflict between a child and the State/government and does not relate to a child’s Constitutional rights in relation to the conflicting rights of a parent. It is likely that a child may not even have standing to contest their parent’s decisions with regard to religious upbringing in most foreseeable situations as the conflict would likely not have a basis in governmental action which would be a necessary element for any Constitutional challenge.

It is well-established that fit natural parents have a Constitutionally protected right to raise their child as they see proper, including but not limited to deciding with whom that child associates. Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994). In Wisconsin v. Yoder, 406 U.S. 205 (1972), the United States Supreme Court specifically avoided the question as to conflicting Constitutional protections as between Amish parents and their children when the Court stated:

Contrary to the suggestion of the dissenting opinion of MR. JUSTICE DOUGLAS, our holding today in no degree depends on the assertion of the religious interest of the child as contrasted with that of the parents. It is the parents who are subject to prosecution here for failing to cause their children to attend school, and it [406 U.S. 205, 231] is their right of free exercise, not that of their children, that must determine Wisconsin’s power to impose criminal penalties on the parent. The dissent argues that a child who expresses a desire to attend public high school in conflict with the wishes of his parents should not be prevented from doing so. There is no reason for the Court to consider that point since it is not an issue in the case. The children are not parties to this litigation. The State has at no point tried this case on the theory that respondents were preventing their children from attending school against their expressed desires, and indeed the record is to the contrary. The State’s position from the outset has been that it is empowered to apply its compulsory-attendance law to Amish parents in the same manner as to other parents — that is, without regard to the wishes of the child. That is the claim we reject today.

Our holding in no way determines the proper resolution of possible competing interests of parents, children, and the State in an appropriate state court proceeding in which the power of the State is asserted on the theory that Amish parents are preventing their minor children from attending high school despite their expressed desires to the contrary. Recognition of the claim of the State in such a proceeding would, of course, call into question traditional concepts of parental control over the religious up-bringing and education of their minor children recognized in this Court’s past decisions. It is clear that such an intrusion by a State into family decisions in the area of religious training would give rise to grave questions of religious freedom comparable to those raised here [406 U.S. 205, 232] and those presented in Pierce v. Society of Sisters, 268 U.S. 510 (1925). On this record we neither reach nor decide those issues.

In Wisconsin, 406 U.S. 205, 230-231 (1972). However, Justice Douglas wrote in his dissent that that majority decision left the children under the yoke of the parents and that by not addressing the relationship between the constitutional rights of the parents and those of the children, the children’s constitutional rights were effectively abrogated by imposition of the parents religious views upon the children.

Under North Carolina law, the question of priority regarding a child’s Constitutional rights of free exercise of religion versus that of a parent seems unsettled as much as it is in the national context. The question is: at what point can a state enforce a child’s constitutional rights as against a parent’s right to raise their child?

In conclusion, North Carolina Courts may consider which parent is better suited to care for a child’s spiritual upbringing and may use this consideration as one factor in determining the custody arrangement that is in the best interests of the child. The Court may also order that one parent or the other have sole decision-making authority as to the child’s spiritual upbringing. However, it is unclear whether or to what degree courts may enforce a child’s wishes regarding their spiritual upbringing as against the decisions of their parents or parent.

Author’s Note: The above is presented as general information. It is not exhaustive coverage of this issue but only a general explanation from an attorney’s perspective. The purpose of this article is to inform the non-lawyer who may read current status of the issue in North Carolina. The reader interested in learning more should contact an attorney licensed to practice law in their jurisdiction.

An introduction to spying

If you must spy on your spouse, educate yourself on the laws of your jurisdiction and the federal laws on the topic; knowing when you are under the purview of the state, federal, or even common law is extremely important as it vastly affects how and to what extent you may spy on your spouse. The safest course of action is to seek legal advice from a licensed attorney before you spy. And hire a licensed and respected private investigator instead of conducting your own surveillance.

The law treats government spying and individual spying differently.

There are differences in the law’s treatment of surveillance based on who is doing it. Generally, the law is more restrictive regarding government and law enforcement spying than then it is when private individuals are doing the surveillance and even less restrictive for parents monitoring their minor children. However, many boundaries still exist regarding private individuals, and some spying could leave individuals open to being sued civilly or charged criminally in some circumstances.

Criminally, several charges could be levied against someone for spying on another person, including trespassing or federal wiretapping charges. These are serious crimes and one could face imprisonment and be required to make financial restitution. Tortious Invasion of Privacy and other Civil liability could apply.

Tortious Invasion of Privacy by Intrusion

North Carolina recognizes an action based on an invasion of privacy by intrusion. Invasion of privacy by intrusion is defined as: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” North Carolina does not recognize a cause of action for the invasion of privacy by disclosure of private facts or invasion of privacy by placing a plaintiff in a false light before the public.

Specific examples of intrusion include: “physically invading a person’s home or other private place, eavesdropping by wiretapping or microphones, peering through windows, persistent telephoning, unauthorized prying into a bank account, and opening personal mail of another.”

In other words, certain areas may be off-limits to even a spouse. For instance, a video camera installed in a bathroom may be tortious as a reasonable person would likely find it “highly offensive” even in the context of a marriage. No cameras or audio recorders should be employed in a toilet area, shower area, or bedroom area of a spouse.

Interception of oral communications and electronic communications

In North Carolina N.C. Gen Stat. § 15A-287(1)(a) states:

1. Except as otherwise specifically provided in this Article, a person is guilty of a Class H felony if, without the consent of at least one party to the communication, the person:

1. Willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.

2. Willfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:

1. The device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communications; or

2. The device transmits communications by radio, or interferes with the transmission of such communications.

2. Willfully discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through violation of this Article; or

3. Willfully uses, or endeavors to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this Article.

Consent by at least one party to a conversation is required before recording a conversation between people. In North Carolina, if you are a party to the conversation, you may consent to your conversation being recorded but you cannot record a conversation to which you are not a participant. Therefore, you cannot legally record a call between your spouse and another person without at least one of them consenting to the recording—even if the conversation is between your spouse and your child. If one person is in another state and not in North Carolina, it may be illegal to record the conversation. Many jurisdictions, including North Carolina, have recognized that parents may vicariously consent on behalf of their minor children to the interception of their conversations. A custodial parent may vicariously consent to the recording of a minor child’s conversations, as long as the parent has a good faith, objectively reasonable belief that the interception of the conversations are necessary and in the best interest of the child. The doctrine of vicarious consent has been applied to parental eavesdropping on conversations between the other parent and their minor children and third parties such as a babysitter or nanny. You must use extreme caution before taping any conversation and we strongly recommend you speak with a licensed attorney to fully understand your rights and responsibilities.

Silent covert video surveillance

Only oral communications are covered by N.C. Gen Stat. § 15A-287(1)(a), and thus, videotaping of a spouse without an audio recording would not be a violation of state and federal wiretapping laws.

Video surveillance by private parties, does not implicate the Federal Constitution’s Fourth Amendment. In, State v. Diaz, 308 N.J. Super. 504, 706 A.2d 264 (App. Div. 1998), it was held that the actions of a child’s parents in contracting with a private company to install audio-video surveillance equipment in their home, for the purpose of observing a babysitter who they suspected of abusing the child, did not implicate the federal or state constitutions, because the allegedly unlawful videotaping was performed by private individuals and not by the government or its agents and the parents vicariously consented to the audio capture on behalf of their child. The denial of the babysitter’s motion to suppress the videotape from evidence, at her trial for aggravated assault and endangering the welfare of a child, was affirmed.

The acquisition of an image is not an interception of a wire or oral communication because the contents of a conversation are not captured. Video surveillance is not the interception of an electronic communication because there has been no interception of the image while it is being transmitted. The audio portion of a videotape is an oral communication and would be subject to the rules discussed above.

However, remember the rules stated above regarding tortious invasion of privacy. Placing a video camera in a private place like the bedroom or the bathroom could still expose you to civil liability.

GPS tracking of a private vehicle

Electronic tracking devices do not “intercept” contents of any wire or aural communication and because the vehicle is traveling on public roads in view of everyone who passes, there is likely no intrusion upon the solitude or seclusion of another or his private affairs or concerns and it also likely not to be offensive to a reasonable person. If the vehicle is titled in your name and it has not been sequestered by contract or court order in favor of your spouse, there appears to be little concern over placing a GPS tracker on the vehicle. Placing such a device on a vehicle that you do not have an ownership interest in, however, could be a trespass to chattels and you could be liable in tort for financial damages. Always consult a licensed attorney before taking any action.

Email & the Internet

If you are still living with your spouse and you are not separated, then when considering other forms of communications such as email communications and the like, the key is: whether your spouse has an expectation of privacy that could be invaded. Even if your spouse previously gave you their email password or computer password, they may still have an expectation of privacy and violation of that privacy could open you up to criminal and/or civil penalties. Ask yourself; for what purpose did my spouse give me his or her password? Do not exceed the scope of that purpose. The use of certain programs like spyware, keystroke recorders may be permissible or illegal depending on the technology employed by the software and whether you continue to live with your spouse.

Once separated, access to your spouse’s email without permission is likely a violation of federal and state wiretapping laws even if you had permission prior to the separation.

Conclusion

The most important thing to remember is that any surveillance must be legal, reasonable, and not overly intrusive. The status of the parties (e.g., separated or not, minor child, or spouse) and the facts surrounding the type of surveillance will affect the legality and permissibility of it. Criminal penalties including jail time and civil financial penalties may be assessed for illegal and improper activities. Some surveillance may be legally conducted by a licensed private investigator for which an unlicensed individual could face sanctions. This area is fraught with such significant and serious risk both financially and to your very liberty, that you absolutely must develop a plan with your attorney before taking any action.

Author’s Note: This article is in no way meant to be a comprehensive analysis of privacy law or surveillance of a spouse. The purpose of this article is to impress on the non-lawyer who may read it, the importance of considering all aspects and consequences of their actions and to outline generally some commonly unknown consequences of such for those who may be unaware. The reader interested in learning more should contact their attorney or perform additional research as more than anything this article should promote the commencement of a thorough discussion of these matters.

In North Carolina, as in many states, the law is trying to keep up with changing technology and culture. This is not just true in so far as computers and cell phone usage is concerned, but also in health and medical fields. For instance, the law in North Carolina has recently recognized a changing world in recent passage of laws concerning: smoking in public places, driving while texting, and video conferencing over the Internet as a supplement to traditional child visitation. Another area of recent fluctuation in the laws of North Carolina is in the area surrogacy.

Surrogacy is the term used to describe the pregnancy of a woman for the benefit of another—usually a contracting couple. There are several types of surrogacy arrangements, such as: “straight” surrogacy when the surrogate is carrying to term her biological child which was conceived precisely for the purpose of providing a child to a contracting couple; “gestational” surrogacy involves the surrogate mother becoming pregnant by transferring a fertilized embryo into the surrogate mother to act as the host of the embryo baby until birth.

Either form of surrogacy, straight or gestational, may be either altruistic or commercial in nature. In altruistic surrogacy, the surrogate receives no compensation for carrying the child to term except as to medical and other pregnancy related expenses. In commercial surrogacy, where allowed, the surrogate receives compensation above and beyond the medical expenses, said compensation can range from $10,000 to around $55,000, not including the cost of fertilization procedures and other medical expenses.

Surrogacy is a viable option for those wishing to produce a child who do not have the means by which to do so, including infertile couples, homosexual and lesbian couples, and single persons wishing to have a child.

North Carolina does not presently have any law directly dealing with surrogacy. However, contract law and adoption laws in North Carolina appear to allow surrogacy albeit in strained terms.

North Carolina has recognized artificial insemination in N.C. Gen. Stat. § 49A-1 which states: “Any child or children born as the result of heterologous artificial insemination shall be considered at law in all respects the same as a naturally conceived legitimate child of the husband and wife requesting and consenting in writing to the use of such technique.”

However, nowhere in N.C. Gen. Stat. § 49A-1 is surrogacy mentioned.

Under North Carolina law, a delivering mother is presumed to be the mother of the child she delivers. The husband of the delivering mother is presumed to be the father of the child. Thus, if a woman agrees to be the surrogate mother for a contracting couple, then, upon birth of the child, the surrogate is considered the mother and her husband is presumed to be the father despite the fact that neither one may have contributed genetically to the child. This leaves the contracting couple (who may have both contributed to the genetic make-up of the child) forced to adopt their own biological child under North Carolina’s adoption statutes.

Adoption in this manner is allowed under North Carolina law so long as no compensation is paid to the surrogate—commercial surrogacy appears to not be allowed under North Carolina law where the adoptions statutes apply. It should be noted that the adoption procedures open the contracting party up to various pre-placement requirements enumerated in the adoption statutes including home studies by the Department of Social Services or another licensed agency.

In March 2009, the legislature of North Carolina began working on House Bill 510 and Senate Bill 440. If the proposed law passes, gestational surrogacy agreements would be officially recognized by North Carolina. As it stands, contract law generally allows parties to the contract to agree to almost any endeavor so long as the purpose of the contract is not immoral or illegal and does not violate public policy. It has not been established whether or not North Carolina would consider a surrogacy agreement immoral or in violation of public policy and as such surrogacy agreement are of questionable enforceability at the present.

Commercial surrogacy will become validated if the North Carolina Legislature passes House Bill 510 (SB 440) as presently written. The proposed law states that: “The consideration, if any, paid to a gestational carrier shall be reasonable and negotiated in good faith between the parties. Compensation may not be conditioned upon the health or characteristics of any fetus, embryo, or child produced as the result of assisted reproduction.”

In conclusion, at the present only altruistic surrogacy appears to be achievable in North Carolina through North Carolina’s adoption statutes but little protections are available to the contracting party/intended parent due to present questions surrounding the enforceability of surrogacy contracts and the legal presumptions presently in place regarding parentage. However, times-are-a-changin’ and North Carolina appears (if HB 510 and SB 440 are any indication) to be moving along the same progressive timeline as many other states and may soon make it easier to create surrogacy arrangements between intended parents and the gestational women, potentially even commercial surrogacy arrangements. It just takes a little time for the law to catch up to changes in the technology and culture.

Author’s Note: The above is presented as general information on surrogacy law in North Carolina. It is not exhaustive coverage of this issue but only a general explanation from an attorney’s perspective. The purpose of this article is to inform the non-lawyer who may read it the current status of surrogacy law in North Carolina. The reader interested in learning more should contact an attorney licensed to practice law in their jurisdiction.

Divorce from Bed and Board (or A Mensa Et Thoro as those fancy Latin types used to call it) is commonly described simply as a judicial separation. However, a Divorce from Bed and Board carries with it several serious consequences including but not limited to: 1) establishing marital misconduct or fault, which may serve as a foundation to an alimony claim, criminal charges, or inadvertently effect a judge’s mindset; 2) extinguishing intestate and probate rights of the party found to be at fault in the estate of the non-fault party; 3) has a considerable effect on the real property rights of the parties; and 4) yes—it does establish the date of separation, which could affect the marital property rights of either party in an equitable distribution action. Without considering these considerable effects, an attorney or pro se litigant could place their client or themselves in an untenable situation.

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“The difference between divorce and legal separation is that a legal separation gives a husband time to hide his money.”
—Johnny Carson

In North Carolina, what most people call a divorce is actually an absolute divorce. An absolute divorce means that a court has determined that the marital contract between a husband and wife that was entered into during the wedding ceremony is now severed; the parties are no longer intermarried. In order to meet the requirements for an absolute divorce in North Carolina, the parties must remain separate and apart with the intent to not be in the relationship of man and wife for at least one full year. Hence, there is no such thing as a “quickie” divorce in North Carolina.

Because it takes at least a year to get a divorce, the problem arose on how North Carolina couples could effectuate a separation between the parties when the situation was not conducive to such a separation, as when there exist instances of marital abuse, manipulation, or adultery.

Divorce from Bed and Board is a fault based solution to a non-harmonious marriage and as such does not just force a simple judicial separation. Divorce from bed and board forces a separation in a manner that favors the injured party and disfavors the party found guilty of fault during the marriage. There are several statutory grounds for Divorce from Bed and Board. These grounds are enumerated in N.C. Gen. Stat. § 50-7, which states:

[A] court may grant divorces from bed and board on application of the party injured, made as by law provided, in the following cases if either party:

(1) Abandons his or her family.

(2) Maliciously turns the other out of doors.

(3) By cruel or barbarous treatment endangers the life of the other. In addition, the court may grant the victim of such treatment the remedies available under G.S. 50B-1, et seq.

(4) Offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome.

(5) Becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome.

(6) Commits adultery.

Divorce from Bed and Board suspends the marriage contract in anticipation of an absolute divorce but it does not actually dissolve the marriage bond. It allows the parties to cease cohabitation, but a Divorce from Bed and Board also causes the party at fault to lose certain marital benefits, including but not necessarily limited to: all rights of intestate succession in the estate of the non-fault spouse; any claims or rights the spouse at fault might have had to succeed in the real property of the non-fault spouse; the right to petition for an elective share of the estate of the non-fault spouse; all rights to a year’s allowance in the personal property of the non-fault spouse; the right to administer the estate of the other spouse; and the loss of any and all rights in the property of the non-fault spouse “which by a settlement before or after marriage were settled upon” the spouse at fault in consideration of the marriage.

I’ll give it to you if you say I am a good person

“A lawyer is never entirely comfortable with a friendly divorce, anymore than a good mortician wants to finish his job and then have the patient sit up on the table.”
—Jean Kerr

Defendants sometimes consent to various orders being entered to avoid going to trial on a claim for divorce from bed and board. Generally, clients (and attorneys) do this because the Plaintiff-Spouse drafts and offers a consent judgment on their other issues that removes the more spurious allegations of fault; not wanting to be embarrassed or concerned over the damage that could be caused to their reputation, the Defendant signs the consent order in return for the Plaintiff’s voluntary dismissal of their claim for Divorce from Bed and Board. Several instances where consent orders on the issue of Divorce from Bed and Board have been entered without specific findings of fault have occurred; legally, this is a void order which can cause numerous complications. No one can consent to a Divorce from Bed and Board unless they also admit to the fault giving proper grounds for the court to find a divorce from bed and board applicable.

Establishing fault in alimony

“Ah, yes, divorce… from the Latin word meaning to rip out a man’s genitals through his wallet.”
—Robin Williams

Alimony is court ordered support for a dependant spouse. In order to be eligible for alimony a spouse must first prove they are dependant on the other spouse for support. After the spouses’ roles are defined as supporting and dependant spouses, a judge will determine an amount of support suitable to maintain the dependant spouse at their standard of living during the marriage. When marital misconduct is proven by a spouse, alimony may be diminished or required. If the dependant spouse is the only spouse to proven to commit preseparation marital misconduct, the court may disallow alimony. However, if the supporting spouse is at fault, the court must award some amount of alimony to the dependant spouse. Preseparation marital misconduct by both in essence returns discretion back to the judge. An order entered in an action for Divorce from Bed and Board finding marital misconduct can be used by either spouse against the other spouse in a subsequent alimony action under the doctrine of collateral estoppel.

Establishing the date of separation

“I’m an excellent housekeeper. Every time I get a divorce, I keep the house.”
—Zsa Zsa Gabor

Equitable distribution is the division, and dispersion between the spouses, of marital property by the court. First, all the property owned by the spouses is identified. Second, the property is classified as marital, separate, divisible, etc. Third, the property is valued. Lastly, the marital property is divided among the now separated spouses. Because marital property is defined as “all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned, except property determined to be separate property or divisible property;” the date of separation becomes extremely important for the spouses in determining what the court may divide. Much like alimony, an order in an action for Divorce from Bed and Board can establish the date of separation. Property after the Divorce from Bed and Board acquired by either party will be generally deemed separate property of the spouse that acquired it. If the actual date of separation is earlier than that determined in the Divorce from Bed and Board action, many assets that should be classified as marital could end up in the other spouse’s hands as separate property.

Extinguishing intestate and probate rights

“Is there a cure for a broken heart? Only time can heal your broken heart, just as time can heal his broken arms and legs”
—Miss Piggy

The spouse guilty of fault is barred from taking at the other spouse’s death; however, nothing in the law seems to prevent the non-guilty spouse from taking in the event of the death of the guilty spouse. The spouse at fault may believe that because they cannot take at the other spouses’ death, the other spouse cannot take at their death—this is not the case and at the very least, the spouse found to have committed marital fault in the Divorce from Bed and Board action would be wise to execute a new will and estate plan. This is especially important during the year of separation required before an absolute divorce can be filed.

Considerable effect on real property rights

“She cried, and the judge wiped her tears with my checkbook.”
—Tommy Manville (married 13 times, to 11 women)

Another such right that may be lost to a spouse who is found guilty of marital fault in an action for divorce from bed and board is the long-held prohibition against property held as tenants in the entirety by the spouses being conveyed without the joinder of the spouses (without a Divorce from Bed and Board, both husband and wife have to sign a deed conveying the property). The spouse at fault may get a judgment against the other spouse for those proceeds received from the sale of the marital home without their joinder under a claim in quantum meruit or other action; however, the reality is that may be a day late and a dollar short. Even though it would be legally wrong, nothing is actually preventing the other spouse from spending or hiding that money before it can be attached (if it even can be) or protected against waste, and the cost of further litigation will undoubtedly diminish any actual recovery one may enjoy through a judgment. In other words, by the time the spouse can recover, there might not be anything to recover. Litigation over the proceeds of the sale without joinder of the other spouse could lead to spending the money on legal fees and resulting in no res to collect damages from or the cost of litigation may reduce the net realization of the monies to such a degree that no monetary benefit is had by either party. Further, the spouse who was at fault in the Divorce from Bed and Board action will be going into court seeking restitution from a person the court might perceive as an innocent.

Conclusion

“You don’t know a women till you’ve met her in court.”
—Norman Mailer

Divorce from Bed and Board is not just a judicial separation. It is a potentially damaging set of allegations that causes many Defendants to consent to giving up that which they should not to avoid those allegations from becoming public. However, there are many other potential consequences to a divorce from bed and board that every defendant should be aware of, including: 1) establishing an alimony claim; 2) extinguishing intestate and probate rights of the party found to be at fault in the estate of the non-fault party; 3) effecting the real property rights of the parties; and 4) establishing the date of separation.

Author’s Note: The purpose of this article is to impress on the non-lawyer who may read it, the importance of considering all aspects and consequences of a Divorce from Bed and Board and to outline generally some commonly unknown consequences of such for those attorneys who may be unaware of them. The reader interested in learning more should contact their attorney. This article does not address defenses to Divorce from Bed and Board, which will be the subject of a later article.