The cause of action of breach of promise to marry is related to the “heart balm tort” of alienation of affections.  The former is the result of a breach before marriage and the other may be brought if a third party has an affair with a plaintiff’s spouse during the marriage.  Either one of these claims may be brought by a man or woman.  The unpredictable amount of a damage award may cause a defendant to settle because a plaintiff may receive punitive damages if they prevail on either of these claims.   

Breach of promise to marry has survived since the late 1800′s and is still brought by plaintiffs in North Carolina.  One need only look to the recent case of Dellinger v. Barnes (No. 08 CVS 1006), 17 December 2010.   A jury in McDowell County, North Carolina awarded the plaintiff with damages of $130,000.  The plaintiff was a young woman that was dedicated to helping her fiance to start several businesses, however, he paid her a small amount of salary.  The defendant broke his promise by starting a relationship with one of his other employees after which he broke off the engagement to the plaintiff.  The plaintiff’s counsel showed the jury that the Defendant not only broke his promise to marry, he also took advantage of her reliance in that she worked hard alongside the defendant because she believed she would share in the success of the businesses.  For more information on this case see below. 

Due to the above results, one may ask whether they should enter into a prenuptial contract (aka a “prenup”).  A prenup may be helpful in the long run for certain people.  In the past, the very act of being asked to sign a prenup may have been seen as insulting and a signal that the marriage is starting on rocky ground. Now, more individuals consider a prenup as an essential planning document that simply makes good sense.  While discussing the contents of the prenup, many couples resolve difficult financial questions at a time when they are most in love.  For more information on things to be included in a prenup see www.ricefamilylaw.com.

This author sees a place for the cause of action of breach of promise to marry because the facts may be different from the 1800′s but the basic theme still occurs today.   However, discussing finances and a prenup may prevent costly litigation like in Dellinger v. Barnes or after a marriage.  Couples should have a serious conversation about finances before deciding to get married, and couples should seek the advice of a licensed attorney to draft an enforceable prenup.

For more information about Dellinger v. Barnes, read the article  in N.C. Lawyers Weekly entitled “Man must pay jilted fiancee $130k for reneging on engagement”, by Sylvia Adcock, published on January 6, 2011.

• Air Force: Air Force Instruction 36-2906 (Personal Financial Responsibility) 
• Army: Army Regulation 608-99, Chapter 2, Section II 
• Coast Guard: Coast Guard Personnel Manual, Chapter 8.M 
• Marines: Marine Corps Legal Administration Manual, Chapter 15 (MCOP5800.16A) 
• Navy: Navy Military Personnel Manual, Section 1754-30 (MILPERSMAN)

 

If a service member improperly refuses to pay support, a service member’s spouse should send a complaint to the appropriate commanding officer (i.e. battalion commander) requesting enforcement of the court order or military’s requirements. Failure to pay support may be punished as a criminal offense under the Uniform Code of Military Justice (UCMJ). The Federal government may garnish a soldier’s pay up to a maximum of 55%, but North Carolina will only garnish up to 40% of a soldier’s pay.In North Carolina, a district court hears child support cases in the county in which the child resides. Generally, the noncustodial parent must have minimum contacts with North Carolina for it to exercise jurisdiction over the child support case. This does not mean that a noncustodial parent may move from North Carolina to another State in an attempt to lower their child support obligation, because certain laws exist to prevent that situation. If a child and custodial parent move to North Carolina, then the noncustodial parent may attempt to get a North Carolina court order to pay support according to the North Carolina guidelines. However, the court has the power to modify child support upwards or downwards. 

Waivers of support obligations are sometimes available to service members. For instance, in the Navy, a service member may request a waiver of the requirement to pay spousal support if the sailor provides evidence of physical abuse or infidelity. The Navy also has a waiver process for child support; say for instance, if it is apparent that the person requesting child support does not have physical custody of the child. Even if a service member is granted a waiver by a commanding officer, the service member’s spouse may seek enforcement through a higher authority in the military and/or from a civilian court. A waiver is unlikely to override a court’s order, and so a service member should still consult a JAG or civilian attorney in North Carolina to ensure that the service member is in compliance. If a North Carolina court finds that the service member failed to pay child support or spousal support required by law or under an order it will likely find the service member in contempt and possibly award attorney fees to the custodial parent. Even if no court order exists, a service member may be required to pay retroactive child support if the custodial parent makes this claim. 

Any received Family Separation Allowance (FSA) should be factored into support obligations when negotiating a SAPS. Service members must be prepared to repay FSA if they are in the midst of a separation in North Carolina. According to the Department of Defense Financial Management Regulations, the military will attempt to recoup from the service member any FSA paid since the date of separation. In North Carolina, the date of separation will be in a SAPS and a divorce decree because North Carolina divorce law is based on one year of separation. (This is an anomaly because other states may not require a specific separation date to be included in divorce documents so service members may keep the FSA.) There is an exception to recoupment based upon the amount of time the service member’s child would reside with the service member but for their current assignment. The same threat of recoupment likely applies to the service member’s other allowances. 

Everyone should understand that the military’s purpose for their support requirements is to be a temporary solution. The military prefers assisting with enforcement of SAPS and orders, rather than setting a long term support amount. Once a SAPS is signed or court order on support is entered it is the controlling document. 

The law on relocation differs depending on whether a child’s custody has been litigated, and whether a child’s custody is addressed in a Separation Agreement. If the parties have not litigated issues related to their child and do not have a Separation Agreement, it is possible to relocate immediately inside or outside of North Carolina prior to litigating custody and/or child support. If the new location is in another state, consult an attorney in that state for advice on how much time you must reside there before filing a custody action. Generally, a person is also allowed to take their child and move immediately to a new location if domestic violence is involved.

If parents have litigated custody or have a Separation Agreement, and relocation is not agreed to by both parents, an attorney will likely file a Motion to Modify Visitation or Custody. There are several recent North Carolina cases involving these motions, essentially requesting the court’s permission to relocate. The parties in these North Carolina cases had different reasons for requesting that the court grant their motions, but a similar test was applied by the courts in the cases. The courts considered the child’s best interests to determine whether to modify custody or visitation. A court might also refuse to modify a prior Order unless a substantial change of circumstances has occurred; however, a move for employment reasons is likely a substantial change of circumstances. Based upon these cases, a court will likely use several factors to determine the child’s best interests. These factors include:

…the advantages of the relocation in terms of its capacity to improve the life of the child; the motives of the custodial parent in seeking the move; the likelihood that the custodial parent will comply with visitation orders when he or she is no longer subject to the jurisdiction of the courts of North Carolina; the integrity of the noncustodial parent in resisting the relocation; and the likelihood that a realistic visitation schedule can be arranged which will preserve and foster the parental relationship with the noncustodial parent.

—Evans v. Evans, 138 N.C.App. 135, 142, 530 S.E.2d 576, 580 (2000).

If a North Carolina trial court uses these factors to determine the child’s best interests its decision is more likely to be upheld on appeal.

A court also has the discretion to reduce child support payments in a case involving relocation. If a court allows relocation of a parent and child, that court will have possibly held that a substantial change of circumstances occurred. As a result, that court may not only modify custody, the court may also modify child support. A court can increase or decrease child support, and a court can deviate from the North Carolina child support guidelines. For instance, a court might suspend a parent’s child support obligation so that the non custodial parent can visit the child in the new location.

Preparation is important when attempting to relocate. It is wise to first consult the other biological parent, and to memorialize any agreement in writing, at which time an attorney can draft a consent order or modification of a Separation Agreement as appropriate. If no agreement is reached, consult an attorney to prepare a Motion to Modify Visitation or similar action, and also consider child support. In all cases, your ability to relocate will depend on what is in the best interests of your child.

If you discover that you missed the initial filing deadline, North Carolina has a “Savings Statute” that allows the defendant to claim equitable distribution subsequent to the divorce under certain circumstances. North Carolina’s statute allows a late claim for equitable distribution if the defendant was served by publication. A late claim is also allowed when the divorce was granted in another jurisdiction.

The Uniformed Services Former Spouses’ Protection Act (USFSPA) was passed in 1982 to make military pensions subject to division by state courts in divorce and property division proceedings.  All of the states now allow the division of military pensions as marital or community property.  North Carolina enacted N.C. Gen. Stat. 50-20(b)(1) (2001) so that marital property includes vested and nonvested military pensions under the USFSPA.  Furthermore, certain amendments made by Congress to parts of the U.S. Code dealing with Reserve retirement and benefits imply that Congress intended the Act to cover Guard and Reserve retirement also.

The North Carolina Court of Appeals case of Draper v. Draper, 159 N.C. App. 465, 583 S.E. 2d 426 (N.C. App. 2003) involved the division of military retirement benefits in equitable distribution. The plaintiff, Ms. Draper, requested an interim distribution of the defendant, Mr. Draper’s, retirement benefits. The defendant was married to the plaintiff during his entire service as a member of the United States Air Force.  At the trial court level, the plaintiff was unsuccessful in getting any of the Defendant’s retirement benefits because she did not offer evidence of the date of separation value or the present value of the defendant’s benefits.  On appeal, the Court of Appeals reversed the trial court on the issue of equitable distribution. The Court remanded the case to the trial court to value under the deferred distribution method and equitably distribute the defendant’s military retirement benefits, except for defendant’s disability benefits. The Court explained that the North Carolina trial courts are not limited to the present value method, as long as the court values the retirement benefits as of the date of separation.

North Carolina calculation

Equitable distribution and pension issues are addressed in N.C. Gen. Stat. 50-20.1 in which it provides a formula to value the marital portion of the benefits:

Years of Marriage that Coincide with Employment

Year of Employment

An example of division in a hypothetical case may help to illustrate how it works.  Assume that the couple has been married for 5 years and that, for all 5 years, she was employed by the company, government or organization providing the pension.

Also assume that her pay with 20 years of employment is $4,800 per month, and that she can retire after 20 years of service with 50% of her base pay.  Thus, the monthly retired pay of the employee spouse is $2,400.

$2,400 × 5 years marital pension service = $600 (marital part of pension)

20 years total pension service

Military Calculation

Deferred Division: The marital fraction is calculated as follows:

Years of marital pension service =  M

Years of total pension service            T

The numerator (M) represents the years of marital pension service, and the denominator (T) represents the total number of years of creditable service that the service member will perform.

An example of deferred division in a hypothetical case may help to illustrate how it works.  Assume that a service member has been married for 5 years and that, for all 5 years, he was on active duty in the United States Marine Corps.

Also assume that his active duty pay with 20 years of service is $4,800 per month, and that he can retire after 20 years of service with 50% of his base pay.  Thus, the monthly retired pay of the service member is $2,400.

$2,400 × 5 years marital pension service =  $600 (marital part of pension)

20 years total pension service

Present Value Offset: In addition to the future division of retired pay, all states recognize a second method of pension division called a “present value offset.” This represents the present value of a series of money payments over the course of the service member’s life. The money payments are their retired pay, present value is the amount used so that the service member keeps the entire pension. The parties are left with a complete division of this asset.

How is present value calculated? There are several options available. Sometimes an expert is needed for trial. If settlement is possible, a mail order pension evaluation can be done by a party or parties, approximately $300–$500.

There is also a second method of determining present value, and this one makes no assumptions regarding interest rates, life expectancies or inflation.  It involves pricing an annuity that will yield a monthly payment equal to the pension. You and your attorney can seek out a professional to create a proposed annuity that might provide a better outcome.

North Carolina allows for several options to handle a military pension. Make sure you and your attorney consider all of the options.

As one might have guessed Eunice H. Chapman did not have the same legal standing and property rights as women have in modern society.  When Eunice married James Chapman she lost her property rights and legal standing as an individual. As a result, when her husband attempted to reconcile only to be rebuffed by Eunice, her husband took the remaining property and their three children to the Shaker religious group. 

It is worth pointing out that Eunice did not want to reconcile for a couple of reasons. First, James was notorious for drinking and wasteful spending, leading to him selling much of the couple’s property before abandoning his family. Second, James claimed to have changed and wanted to live in Shaker society in which the couple would not live together alone as Husband and Wife. Eunice was not interested in the type of life offered by Shaker society, and this refusal set off the battle between Eunice and the Shaker religious leaders of James’ group.

These events leading to Eunice’s extraordinary acheivement are very interesting. At first, Eunice maintained custody of her three children until her husband and the Shaker leaders lured Eunice away from her home and then removed her children and the remaining property from the home. For a couple of years Eunice attempted to settle custody with the Shaker leaders, without success.  Eunice was determined to get her divorce and custody so she sought the assistance of the New York legislature. Around 1817, after years of talking in person and writing to the NY assemblymen, Eunice was given a “legislative divorce” from her husband, and no actual trial occurred. Even Thomas Jefferson noticed and commented on Eunice’s case. 

Eunice may have received her divorce, but she did not have custody of her children yet. She reportedly resorted to gathering a mob to go to the Shaker group that had possession of her three children. Again, Eunice remarkably overcame the religious leaders by getting her three children back.

New York law later changed around 1966 so that a divorce was not solely dependent on proving adultery.  In the majority of states the law is either based on a “no fault divorce”, or the divorce law is dependant on a period of separation, as in North Carolina.  However, religion does still play a role in some custody disputes. (For more information see Richard Kern’s Article: Custody and Religion). 

The current news is full of interesting court cases about marital rights, multiple marriages, and interstate custody battles, but Eunice H. Chapman’s remarkable legal battle is truly noteworthy. Litigants in 2010 are understandably frustrated by the amount of time required to get a divorce, but their divorce and custody matters usually only last one to two years. In light of the many years spent in pursuit of Eunice H. Chapman’s legislative divorce the modern legal system has come a long way.

More and more boomers are faced with the daunting challenge of caring for their parents because the safety net for older adults is facing imminent threats. Social Security, Medicare and Medicaid programs will potentially decrease benefits to elderly Americans, thus increasing the responsibility of adult children to manage their parents lives as they struggle with Alzheimer’s disease and dementia. The United States government and local governments have attempted to adapt to these necessary changes, but the system has become even more difficult to understand. It is important to find an attorney that knows the relevant laws and system because the incompetency and guardianship process can be difficult and stressful.

As a hypothetical, imagine an elderly member of your family is showing signs of dementia. She cannot take care of herself and is living in unsanitary conditions, but due to the onset of dementia she refuses care. Moreover, due to her dementia she is confrontational about accepting assistance from you or anyone in her home. What do you do?

The hypothetical is becoming a common challenge due to the growing elderly population. In North Carolina, the legal system provides an option to have an individual declared incompetent and a guardian appointed, either an individual, corporation, or public agent. See N.C. Gen. Stat. §35A-1112 and N.C. Gen. Stat. §35A-1214. The person filing the petition is the petitioner, and the petitioner is often a family member that has the best interests in mind of their family member, the respondent.

An incompetency and/or guardianship hearing is conducted in front of the Clerk of Court as either a bench trial or a jury trial. The petitioner and respondent are entitled to present testimony and documentary evidence, so the proceeding is much like any other court case. In North Carolina, the petitioner pays the filing fee and sometimes the guardian ad litem costs, but the petitioner is not required to pay some of the costs as long as they have reasonable grounds for their action. Moreover, if the respondent is declared incompetent, the respondent or their estate will likely be charged the guardian ad litem’s attorney fees and costs.

The respondent will be appointed a guardian ad litem, which is a member of the local Bar. The guardian ad litem should perform a thorough study of the individual’s current mental state, but the guardian ad litem is unlikely to favor the petitioner because “The guardian ad litem shall present to the clerk the respondent’s express wishes at all relevant stages of the proceedings.” See N.C. Gen. Stat. §35A.

At the first scheduled court date the petitioner can move that the Clerk order a physician to perform a multi-disciplinary report on the individual. The multi-disciplinary report is a basis for the Clerk to decide whether the respondent is incompetent in the opinion of a trained medical professional.

N.C. Gen. Stat. §35A-1112(d) provides in relevant part that “If the finder of fact, whether the clerk or jury, finds by clear, cogent, and convincing evidence that the respondent is incompetent, the clerk shall enter an order adjudicating the respondent incompetent.”

N.C. Gen. Stat. §35A-1112(e) on guardianship provides in relevant part that “Following an adjudication of incompetence, the clerk shall either appoint a guardian” or transfer it to the appropriate county to appoint the guardian.

If the Clerk or jury finds the respondent incompetent, the Clerk will issue an Order setting forth the nature of the guardianship and name of the guardian, powers and duties of the guardian, and the identity of the agency, if any. The Clerk can also order a limited guardianship based upon the nature and extent of the ward’s incompetence. N.C. Gen. Stat. §35A-1215. The best option for a guardian is an accountable and responsible individual capable of handling the ward’s financial, legal and medical issues.

These proceedings are contentious if attorneys are representing the parties. The process can be worthwhile if the petitioner has the best interests in mind so that the respondent can receive the care they need. All parties to this proceeding should take their role seriously by seeing the big picture of what is likely to occur, especially in the case of an elderly family member, as it is too late to begin this process once an incident occurs which leads to a quick death.

In some cases the solution is proper estate planning. All adults should have a Health Care Power of Attorney, Durable Power of Attorney, and Will. In a properly drafted power of attorney the option is provided to nominate a potential guardian. This becomes important if a doctor declares their patient incompetent, at which point the patient’s power of attorney takes effect, including the nominated guardian. In this scenario, proper estate planning likely prevents a costly court battle.

The number of elderly North Carolinians with Alzheimer’s Disease is projected to increase from 170,000 in 2010 to 210,000 in 2025. —Alzheimer’s Association, 2010 Alzheimer’s Disease Facts & Figures

Disclaimer: This information is only applicable to North Carolina. We strongly recommend that you consult with a licensed attorney concerning your matter.

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 of the issue in North Carolina. The reader interested in learning more should contact an attorney licensed to practice law in their jurisdiction.

First, the parties identify the property. For instance, most people have different types of property, and an attorney will likely need details about the property like the year and/or product number. Property includes collections, stocks, and vehicles to name a few. In all cases, attorneys use discovery as an important tool to identify all of the property. (“By finding hidden assets, preventing surprise, narrowing the issues before trial, or promoting fair settlement; discovery reduces the costs to the client in the long run and/or increases that which the client is entitled.”)

Second, a court classifies the property into separate, marital or divisible. The classification of the property depends on whether the property is acquired before, during or after the marriage. The source of funds rule controls this process in North Carolina. In addition, under the source of funds rule property may have both separate and marital interests, like if money from an inheritance is combined with funds from a joint account to purchase a boat. However, some courts have ruled the money from inheritance used on a boat becomes marital because it is a gift to the marriage. For couples that acquired property for many years, the classification process is more difficult.

A helpful analogy for equitable distribution is the image of a football field with one goalpost at each end. All property acquired before or after the marriage will fall off the field outside of the goalposts and is your separate property. All property acquired during the marriage falls on the field within the goalposts and is marital property. If separate property, acquired before the marriage, is used to pay for a marital residence it is pulled onto the field and thus becomes marital property. Divisible property covers the change in value of marital property after separation but before distribution, and this increase or decrease falls outside of the goalposts. This analogy explains the basic rules of equitable distribution, but exceptions do exist.

Third, a court values the property. This step merely requires determination of the fair market value. One problematic type of property is a collection. Be content to keep the collection if you have a collection of beanie babies or baseball cards. These collections are worth a fraction of their value 10-20 years ago. The value assigned to a collection must be equal to what similar collections sell for today.

Fourth, a court distributes the assets, and debts if any. North Carolina presumes an equitable distribution, 50/50 split, of the marital property and debt. Obviously, it makes sense to give a collection to the person that is more emotionally attached to the collection. Furthermore, the family heirlooms typically stay with the person that brought the heirloom to the marriage.

Now that you have a general understanding of how equitable distribution works, start listing the specific property items that you most desire and provide this list to your attorney. Equitable distribution becomes more expensive in cases that require discovery to identify suspected hidden assets, experts to value business interests, and an attorney to initiate litigation for purposes of a Qualified Domestic Relations Order (QDRO). Trust your attorney to create a good game plan to accomplish the desired outcome.

For more information on equitable distribution and other family law topics, get the free eBook on Separation & Divorce.

The above is presented as general information on equitable distribution. It is not exhaustive coverage of these issues but only a general explanation from an attorney’s perspective. Seek help from a licensed attorney for more information.

The dependent spouse depends upon their supporting spouse to pay the bills for the food, home, etc., which can lead to a lack of control over their life. In the event the dependant spouse intends to separate from the supporting spouse, they should consult an attorney to learn about their many options. The options below are not exhaustive and will not apply to every situation.

In the event the supporting spouse will not leave the marital residence, the dependant spouse and children should seek a temporary home so that a Complaint and Motions can be filed after the parties separate. The temporary home may be required for a couple of days or months. Before leaving the residence, the dependant spouse should make copies of important documents, refrain from arguments, and limit computer activity. It is necessary to shut down social networking pages on the day you leave the residence, and take your computer to a shop to ensure that spyware was not installed by your spouse. However, the dependant spouse should leave immediately in a case of domestic violence and, in this situation, a local legal aid office and shelters for victims will usually provide free assistance.

In an attempt to provide stability to the dependant spouse and children, an attorney can file a complaint, motion for interim distribution, and motion for sequestration. In these documents an attorney can request that the dependant spouse be supported financially, and the Court can order that the supporting spouse be removed from the former marital residence so that the dependant spouse can return to the residence. The Court can order an interim distribution of marital and separate property pursuant to N.C. Gen. Stat. §50-20(i)(1) (Distribution by Court of Marital and Divisible Property), which provides as follows:

(i)(1) Unless good cause is shown that there should not be an interim distribution, the Court may, at any time after an action for equitable distribution has been filed and prior to the final judgment of equitable distribution, enter orders declaring what is separate property and may also enter orders dividing part of the marital property, divisible property or debt, or marital debt between parties.

For more information about equitable distribution, see the property settlement page on our Website.

se·ques·tra·tion [see-kwes-trey-shun], legal definitions:

1. Seizure of property.
2. A writ authorizing seizure of property.

The order for sequestration is similar to a temporary restraining order. It is a common law remedy that is used on a regular basis in this type of situation. A Judge can order the property to be sequestered with or without the presence of the supporting spouse or opposing counsel. It is highly recommended that the dependant spouse change the locks on the home as soon as they return to the former marital residence. If the supporting spouse returns to the former marital residence, the dependant spouse can request that the police enforce the Court’s Order and eject the supporting spouse from the property. Another option is to file charges for domestic criminal trespass, in which case the accused might be taken to jail. For more information about protective orders, see the domestic violence page on our Website.

A dependant spouse may choose to have an attorney prepare a separation contract or Separation and Property Settlement Agreement (SAPS). These two documents can settle some important issues. The agreement should attempt to maintain the status quo of the current child custody arrangement. For instance, the dependant spouse would maintain primary custody of the children throughout the week, while the supporting spouse visitation on some nights and every other weekend. The amount of custody and/or visitation of the supporting spouse will vary according to their work schedule. This type of custody arrangement can provide a stable environment for the children. Of course, the agreement should provide for interim financial support for the dependant spouse in order to provide a safe home and necessities for the children. The agreement can even contain a clause providing for “Temporary Possession of the Marital Residence.” See the sample separation contract on our Website.

These are a few of the legal options provided for stay-at-home parents and dependant spouses in North Carolina. To learn about additional options, get the free eBook on Separation & Divorce. In all of these cases the children’s best interests and safety should be the primary concerns of the parents.

The above is presented as general information on separation and interim distribution and sequestration. It is not exhaustive coverage of these issues but only a general explanation from an attorney’s perspective. Seek help from a licensed attorney for more information.

The government’s solution to close the loophole was to amend the Gun Control Act in September 1996, resulting in the domestic violence amendment, 18 U.S.C. § 922(d)(9) and 18 U.S.C. § 922(g)(9), commonly known as the “Lautenberg Amendment.” The Lautenberg Amendment prohibits all persons convicted of misdemeanor crime of domestic violence from shipping, transporting, possessing or receiving firearms or ammunition. Furthermore, it also prohibits knowingly selling or providing a firearm to a person who is known to have a domestic violence conviction. The constitutionality of the law was unsuccessfully challenged in a couple of cases.^b

The Gun Control Act, specifically the Lautenberg Amendment, applies retroactively and prospectively to the previously exempt groups of current military service members and recruits. The Department of Defense has taken the Lautenberg Amendment seriously by distributing memorandums that direct the military branches to alert service members of their continuing affirmative obligation to report qualifying convictions. The Department of Defense does allow branches to determine whether to give a reasonable time to seek expungement or pardon of a qualifying conviction.

There are possible exceptions that allow service members to avoid discharge due to a qualifying conviction of domestic violence. The Department of Defense interprets the Lautenberg Amendment to not apply to major military weapon systems or “crew served military weapons and ammunition (tanks, missiles, aircraft, etc.).” In addition, it is conceivably possible to receive reassignment to a position that does not involve use of weapons or ammunition, but this likely mean a loss of rank. These are exceptions in cases of domestic violence, and the Department of Defense will not easily allow a service member to escape discharge.

In North Carolina, domestic violence includes more than just physical assault. N.C. Gen Stat. § 50B-1 defines domestic violence in relevant part as:

a) Domestic violence means the commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person with whom the aggrieved party has or has had a personal relationship, but does not include acts of self-defense:

(1) Attempting to cause bodily injury, or intentionally causing bodily injury; or

(2) Placing the aggrieved party or a member of the aggrieved party’s family or household in fear of imminent serious bodily injury or continued harassment, as defined in G.S. 14-277.3, that rises to such a level as to inflict substantial emotional distress; or

(3) Committing any act defined in G.S. 14-27.2 through G.S. 14-27.7.

The definition likely includes harassment on the Internet or phone. The divorce process can create tension and arguments, and many people vent on the Internet. It is important to keep a cool head rather than sending a threatening email or posting “fighting words.”

Domestic violence is an especially serious issue for service members returning from combat. Prosecution of these acts by a civilian or military court can lead to devastating consequences. For instance, if left undiagnosed or untreated, post traumatic stress disorder (PTSD) may lead to physical and verbal aggression. The flashbacks associated with PTSD can lead to threats against spouses and/or children. In 2007, a Navy doctor sent a memorandum to colleagues that warned, “If adjudication of misconduct charges results in a less-than-honorable discharge, the Marine may lose eligibility for ongoing treatment in the Veterans Administration health care system.” Not only will the service member lose their job, they may lose veterans benefits and discontinue treatment for PTSD.

All military service members should carefully consider that a plea bargain of guilty will trigger the Lautenberg Amendment. It is unlikely to stop prosecution of a serious domestic violence incident. However, in cases of mere heated arguments, a “no fault” settlement is a possible way to prevent triggering the Lautenberg Amendment. Your attorney can immediately contact opposing counsel and suggest methods of “no-fault” settlement, including possession of the residence, division of items of personal property and, if necessary, some measures of interim support for the wife or children. The parties may want to agree to a consent order that discourages harassment and threats. You should carefully consider your attorney’s advice to give a little extra to your spouse because it is likely a better option than losing your livelihood.

Both service members and spouses may seek limited assistance from the JAG office, but usually only the first spouse to consult the office will receive assistance. Take the initiative to get treatment and counseling for PTSD, but if you are accused of domestic violence then consult your JAG office and/or a licensed criminal or family law attorney. An upcoming Rice Law blog article will discuss several laws that assist domestic violence victims to continue to receive government benefits and to enforce court orders on military property.^c

Footnotes

a) Frank Raleigh Lautenberg is a United States Senator from New Jersey that introduced and sponsored the Domestic Violence Offender Gun Ban, known as the “Lautenberg Amendment.”

b) The purpose of this article is to impress on military service members some of the important provisions of the Lautenberg Amendment. The reader interested in learning more should contact a licensed attorney in their jurisdiction.

c) The US Army reports that 27,973 of its troops were dismissed from service on punitive discharges from October 2002 to May 2009.

References

See United States v. Emerson, (No. 99-10331) (5th Cir. 2001); Gillespie v. City of Indianapolis, Indiana, 185 F.3d 693 (7th Cir. 1999); and, United States v. Waters, 23 F.3d 29 (2d Cir. 1994) (ex post facto based challenge to a 922(g)(4) conviction).

An accusation of domestic violence against a law enforcement officer will likely lead to an interrogation. North Carolina has considered more procedural protections for accused officers in the legislation entitled The Law Enforcement Officer Discipline Act. Law enforcement personnel are protected in some states and departments by a peace officer’s bill of rights. Not all states have adopted the peace officer’s bill of rights. The bill of rights usually ensures that the officer is questioned in a civil and reasonable manner. Law enforcement officers accused of domestic violence should take advantage of their right to have representation present at an interrogation. The lawyer should ensure that the officer receives a recording or transcript of the proceeding. (Source: When the Batterer is a Law Enforcement Officer: A guide for Advocates, http://www.bwjp.org, Battered Women’s Justice Project, Diane Wetendorf.)

Department of Defense Policy Memorandum on the Lautenberg Amendment, David S. C. Chu (Source: www.ricefamilylaw.com.)

Military misconduct may be sign of PTSD, http://www.washingtontimes.com, Amanda Carpenter.

Domestic Violence Problems, Protections and Practice Tips, http://www.washingtontimes.com, Mark Sullivan.