The article notes that the veracity of the story was not verified.  In it, the husband claims he loaded the app, “Find My Friends,” to his wife’s iPhone without her knowledge or consent. The application uses the iPhone’s built-in Global Positioning System to broadcast its location to a selected group of friends.  By enabling the GPS broadcast without his wife’s knowledge or consent, had he been in North Carolina, it could conceivably be a breach of privacy actionable under tort law (although there are no current appellate cases on this issue in North Carolina).

We expect these type of technology issues — especially whether it is an invasion of privacy — to become more prevalent in family law cases over the next few years.

Read the full story at Yahoo News.

Living in the same house cannot be “separate and apart.”  In Richardson v. Richardson, 257 N.C. 705, 709, 127 S.E.2d 525, 528 (1962), the North Carolina Supreme Court found that even though husband and wife had become estranged, they were not legally separated because they continued to live under the same roof.  The North Carolina Court of Appeals has stated that “separation, as this word is used in the divorce statutes, implies living apart for the entire period in such manner that those who come in contact with them may see that the husband and wife are not living together.” Ponder v. Ponder, 32 N.C. App. 150, 153, 230 S.E.2d 786, 788 (1977).

The North Carolina Supreme Court has also found that even when husband and wife had lived in separate rooms for five years and had discontinued all sexual relations for more than two years, they were not legally separated.  See Dudley v. Dudley, 225 N.C. 83, 85, 33 S.E.2d 489, 490 (1945). Cessation of sexual relations does not alone constitute a separation. Lin v. Lin, 108 N.C. App. 772, 775, 425 S.E.2d 9, 11 (1993).  In fact, after the parties do separate, “isolated incidents of sexual intercourse” do not constitute a reconciliation such that the one year waiting period has to start over. And this makes sense because the public policy of North Carolina dictates that we want people to stay married and if they can’t date for the purpose of trying to reconcile, it would discourage attempts at reconciliation.

It has long been established in North Carolina that a married couple living in the same house and holding themselves out as man and wife cannot be deemed to have separated.  Oakley v. Oakley, 54 N.C. App. 161, 162, 282 S.E.2d 589, 590 (1981).

In one unpublished case, after the parties actually separated by living separate and apart, a husband was allowed to move into a separate apartment that was locked off from the rest of the house and the Court did not find that this constituted a separation.  See Lange v. Lange, 164 N.C.App. 779, 596 S.E.2d 905 (2004).  It is my opinion, however, that the Court upheld this arrangement because the husband had lived away from the house for a period of time before he returned to live in the apartment.

In conclusion, to be legally separated in North Carolina, you can’t live in the same house.  You must live under different roofs and one of you must form the intent to no longer live as husband and wife.

The problem with the lawsuit was that Robert Bell and James Mozley are both citizens and residents of Beaufort, South Carolina.  James filed motions to dismiss the law suit for lack of jurisdiction. These motions were denied and James appealed to the North Carolina Court of Appeals and won. The Court of Appeals handed down its decision on 1 November 2011 finding that North Carolina does not have jurisdiction over the two South Carolina residents’ dispute.

The Court held that the torts of alienation of affection and criminal conversation are designed to protect the institution of marriage for North Carolina residents and when the torts occur in the State of North Carolina.  In this case, neither Robert nor James are residents of North Carolina and Robert could not prove that James had sex with Lisa in North Carolina.

Robert Bell and his wife, Lisa, had invited James Mozley and his wife to spend New Years with them at their second home in Blowing Rock, NC in 2006.  Sometime after that, Robert Bell discovered vaginal lubricant and unexplained telephone calls.  While he could later prove sexual relations between his wife, Lisa, and former friend James Mozley in four other states (South Carolina, New York, Hawaii, and California), he fell short in his proof regarding North Carolina.

Since South Carolina has abolished the torts of alienation of affection and criminal conversation, Robert Bell’s race to file suit in North Carolina smacked of forum shopping to our Court of Appeals. For the full decision, read it here.

To learn more about the heart balm torts of alienation of affection and criminal conversation, read about them here.

Court Orders obtained “Ex-Parte” represent a decision of a judge made without the presence of all parties to the controversy.  When a Plaintiff, the person initiating the lawsuit, files the lawsuit, that spouse (or usually their attorney) can approach a judge and ask the judge to enter “Ex-Parte” orders. Common “Ex-Parte” orders include orders regarding the custody of a minor child, injunctions, sequestration orders, and restraining orders.

If the Plaintiff makes allegations that a minor child is exposed to a substantial risk of bodily injury or sexual abuse or that there is a substantial risk that the child may be abducted or removed from the State of North Carolina for the purpose of evading the jurisdiction of North Carolina, the Court can enter an Ex-Parte Order on Child Custody that changes the normal living arrangements of the minor child.

Injunctions are often entered Ex-Parte to prevent the sale, destruction or waste of marital property. Sequestration orders may be entered Ex-Parte to grant an exclusive right of use of a former marital residence to one spouse to the exclusion of another.  Restraining orders may be entered Ex-Parte when there are allegations of regarding specific assets and debts and the use thereof or allegations of domestic violence.

Normally, an attorney’s obligation is solely to their client and only presents their client’s side at a hearing. In an “Ex-Parte” proceeding, however, an attorney’s ethical obligations require the attorney to inform the judge of all material facts known to the lawyer to enable the judge to make an informed decision whether or not the facts are adverse.

After the entry of any “Ex-Parte” order in a family law case in North Carolina, a hearing must generally be held within ten days to allow both parties to present facts and allow the judge to determine whether the order issued “Ex-Parte” should remain in full force and effect, be vacated or modified.

The term “Ex-Parte” is also used to refer to improper contacts with a Judge without notice to the other party or counsel for that party — usually those that occur after the filing of the initial lawsuit.  Once a lawsuit has already been filed, a party and their attorney cannot generally have “Ex-Parte” communications with a judge with some exceptions.

An example of an improper “Ex-Parte” communication made national news in 2009 when a North Carolina judge and an attorney communicated by Facebook regarding an on-going child custody case.   Judge Terry of Iredell County was reprimanded by the NC Judicial Standards Commission for the contact via Facebook.  To prevent the appearance of impropriety, some states (e.g., Florida, Oklahoma) have banned it and others have issued ethical opinions regarding it.

But “Ex-Parte” does not have to be over Facebook, it can be any communication where one party or their lawyer speaks with the judge without the presence of the other side.

While “Ex-Parte” is sometimes appropriate and ethical — especially at the outset of a lawsuit to obtain needed orders, it brings significant risks for the attorneys and the judge.

Sarah Files for Divorce and John Keeps the Majority of the Money

John worked for a company for many years and had built up a 401(k) worth three hundred thousand dollars. His wife, Sarah, filed an action against him for an absolute divorce using some forms she found online. When John came to me for legal advice, we made a list of the property that he and his wife acquired during the marriage.

• Former Marital Home [Joint] $ 245,000
• Mortgage [Joint] ($ 175,000)
• 401(k) [John] $ 300,000
• His Car [John] $ 14,000
• Debt on His Car [John] $ 0
• Her Car [Sarah] $ 18,000
• Debt on Her Car [Sarah] ($ 8,000)
• Checking Account [Joint] $ 2,300
• Net Marital Estate $ 396,300

If either filed for equitable distribution and the Court agreed that the above listing accurately represented the property acquired during the marriage, it would be presumed equitable for each side to get property worth ½ the overall value or $198,150 each. However, if a divorce occurs without each side properly preserving their claim for equitable distribution then property vests based upon title. Therefore, under the facts above, John would keep his 401(k) and car worth $314,000 and Sarah would keep her car and the debt on her car worth $10,000. The joint property would be held as tenants in common with each having an undivided interest in the whole. John could sue Sarah after the divorce to divide the house with $70,000 in equity and potentially have a total of $349,000 (1/2 the equity in the house plus the 401(k) and car) while Sarah would only get $45,000 total. In theory, the checking account could also be divided through a petition to partition personalty but it probably would not be worth the cost. So it is to John’s advantage to get divorced without suing for equitable distribution. Actually, he comes out better by over one hundred and fifty thousand dollars!

Very little of it was jointly titled and most of it was in John’s name. The 401(k) like most retirement plans was solely in his name. My advice for his particular case was “let her get the divorce and then we will file a petition to partition the real property.”

The entry of a divorce judgment forever cuts off claims for the division of marital property (equitable distribution) and spousal support (post separation support and alimony). The failure to specifically apply for these rights prior to the entry of a divorce judgment acts as a waiver of these rights and they are lost forever. North Carolina law, N.C. GEN. STAT. § 50-11(e), states that “an absolute divorce obtained within this State shall destroy the right of a spouse to equitable distribution.” To preserve claims for equitable distribution and alimony, a valid claim must be asserted before entry of the divorce.

So be careful when filing for divorce in North Carolina. It is worth it to consult with an attorney and determine the best option for your particular situation. A simple divorce could cost you hundreds of thousands of dollars! It also cuts off alimony rights and if John would owe Sarah alimony in the above hypothetical, she would be in even worse shape!  In this case, Sarah made a huge mistake.

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.