In many cases the marital residence is one of the most valuable assets of a divorcing couple’s estate. Now more than ever couples who are separating are faced with difficult decisions regarding what to do with their marital residence. Traditional options like immediately selling the marital residence or having one party buy the other party out may not be possible or desirable given current economic conditions. Accordingly, some parties are electing to hold on to the marital residence as tenants in common and wait for the market to recover. In such cases, it is important for the parties to understand the responsibilities and potential tax ramifications.

There may be serious capital gains ramifications depending upon the timing and circumstances of a future sale or transfer. In order to exempt up to $250,000.00 of capital gains (or up to $500,000.00 if you are married filing joint), you must satisfy the ownership and use tests. In order to satisfy the ownership and use tests, a party must have owned the home and lived in the home as their principle residence for at least two years during the five year period ending on the date of the sale. Therefore, if Husband and Wife separate and sell their marital residence quickly, they may both still satisfy the ownership and use tests. Assume Husband and Wife purchase property as tenants by the entirety and use this property as their principle residence for two years before Husband moves out and the parties separate. If they sell the marital residence quickly and are still married on the last day of the tax year they both still meet the ownership and use tests and can exempt up to $500,000.00 of capital gains if they file a joint married return.

The treatment of capital gains tax can be drastically different if sale of the property is delayed. Assume that Husband and Wife divorce but continue to own the former marital residence as tenants in common. Following the parties’ separation, Wife lives in the residence for three and a half years prior to its sale. Since they continue to own the property as tenants in common, the gain is reported with each party receiving fifty percent. However, Husband no longer satisfies the use test and will not qualify for the up to $250,000.00 exemption.

The above is just one example of the many tax ramifications which couples may face when deciding what to do with their former marital residence. Accordingly, prior to the sale or transfer of real property you are strongly advised to seek advice from an attorney as well as an accountant with experience dealing with these issues.

Contributor:

You can reach Raleigh Divorce Lawyer Cathy Hunt at CHunt@gwhlaw.com.

For more information contact: Raleigh, North Carolina Family Law Firm, Gailor, Wallis & Hunt at 1101 Haynes Street, Suite 201, Raleigh, N.C. 27604. Tel: 919-832-8488 or go to http://www.gailorwallis.com

Disclaimer: The information contained in this article is intended as a general guide and is not to be used as legal advice by Gailor, Wallis & Hunt, PLLC. Whether or not you may be entitled to take action in regard to the information addressed in this article can only be determined after a thorough review of the facts and circumstances of your case. You may contact North Carolina Family Lawyers Gailor, Wallis & Hunt, PLLC, a full service divorce law firm, at 919-832-8488 or 910-509-7223.

In certain circumstances you may be able to limit how much contact your children have with your spouse or former spouse’s new romantic interest. In an initial custody determination, you can offer evidence that your spouse is exercising poor judgment by introducing your child[ren] too soon to his or her paramour or to someone who is not suitable to be around your child[ren]. If there is already a custody order already in place you will need to demonstrate to the court that there has been a substantial change of circumstances that warrants a modification to custody.

A more common way to limit this type of contact is by inclusion of specific provisions in a separation agreement. Two common provisions are a “right of first refusal” provision and a “no overnight visitation” provision. A “right of first refusal” provision would give both parents the right to be notified when the other parent was unable to care for the child and an option to care for the child in lieu of a third party. A “no overnight visitation” provision would prohibit a parent from having overnight visitation with someone not related by blood or marriage. In addition, despite obvious enforcement difficulties, you could include other specific provisions to limit contact between a parent’s new romantic interest and their child[ren] (ie. a provision which prohibits introduction of the children to any new romantic interest until divorce or some other agreed upon time).

Whether you can successfully limit how much time your children are with your spouse or former spouse’s paramour is dependent upon the facts and circumstances of each case. However, in general it is important for a parent to realize that separation necessarily means some loss of control over the parenting decisions of the other parent and that in general attempting to control the other parent following separation is wasted energy.

Contributor: Kimberly A. Wallis – Kimberly Wallis, a Raleigh Family Law Attorney is a North Carolina Board Certified Family Law Specialist with the Raleigh, North Carolina Divorce Law Firm of Gailor, Wallis & Hunt, P.L.L.C. For more information contact: Raleigh, North Carolina Family Law Firm, Gailor, Wallis & Hunt at 1101 Haynes Street, Suite 201, Raleigh, N.C. 27604. Tel: 919-832-8488 or go to www.gailorwallishunt.com.

Disclaimer: The information contained in this article is intended as a general guide and is not to be used as legal advice by Gailor, Wallis & Hunt, PLLC. Whether or not you may be entitled to take action in regard to the information addressed in this article can only be determined after a thorough review of the facts and circumstances of your case. You may contact Raleigh Family Lawyers Gailor, Wallis & Hunt, PLLC, a full service divorce law firm, at 919-832-8488 or 910-509-7223.

Child Support in North Carolina: Part II

In considering child support in North Carolina, the court looks predominately to the biological parents of a minor child to provide his or her support. Under North Carolina law, biological parents have a legal duty to provide for the reasonable needs of their child. There are only two instances where the court can look to a third party for the support of a minor child: 1) when an individual or organization has voluntarily agreed to stand in loco parentis for a child, and 2) when the biological parent of a child is an unemancipated minor.

In loco parentis is a Latin phrase that means “instead of a parent.” A common example of an individual standing in loco parentis is a stepparent. Although a stepparent does not have an absolute duty to provide for the support of a stepchild, he or she may assume a duty of support by voluntarily acting in loco parents. When an individual or organization acts in loco parentis, it means that the individual or organization has assumed the functions and responsibilities of a parent as if the individual or organization was the biological parent of the child. For instance Courts have found that a stepparent who has voluntarily accepted a stepchild in to his or her home and acted as if he or she were the parent of that child, taking actions such as listing the child as a dependent or providing the child with military identification, has stood in loco parentis as to that child. In order for North Carolina to recognize and enforce a support obligation by a non-biological parent of a child, the law requires that the individual or organization assume the support obligation in writing. The writing must be acknowledged by the individual assuming the obligation of support in the presence of a certifying officer as defined in the North Carolina General Statutes. Without a writing which conforms with the required formalities, a judge cannot order a third party to pay for the support of a minor child.

Despite this general rule that an individual may not be ordered to pay for the support of a non-biological minor child without first assuming the obligation for support in writing, there is one exception. This exception arises when the biological parents of a minor child requiring support are themselves unemancipated minors. In cases where one or both of the parents are unemancipated minors, North Carolina law permits the judge to look to the grandparents of the minor child of the unemancipated minors to share the support obligation.

The grandparents’ duty of support is to be shared with that of the minor parents and is independent of whether their own unemancipated child is the custodial or non-custodial parent of the minor grandchild requiring support. Under this scenario, the grandparents continue to share in the financial responsibility associated with the minor grandchild until both of the minor parents’ have reached 18 years of age or become emancipated. In situations where only one parent of a minor child requiring support is an unemancipated minor at the time of conception, North Carolina law provides that both sets of grandparents are liable for any child support arrearages owed by the adult parent until the unemancipated minor parent reaches the age of 18 or becomes emancipated. In determining each individual’s share of the child support obligation, the judge may take into account each party’s ability or inability to provide support and then order one or more of the above mentioned parties to share the child support obligation of the minor child.

In North Carolina, unless an individual or organization has assumed financial responsibility for a minor child in writing with the required formalities or one or both of the parents of a minor child for which support is sought is an unemancipated minor, a court cannot look to a third party to provide for the minor child. In situations where an individual or organization has voluntarily assumed a duty of support in writing, the individual or organization standing in loco parentis is only secondarily liable to the support of the minor child. To hold otherwise would place a stricter duty of support on an individual standing in loco parentis than the biological parents of a child. For example, where a former stepparent has assumed an obligation of support in writing which meets the required formalities, the Court must first look to the biological parents of the child to meet the needs for the child. If, and only if, the biological parents are unable to meet the needs of the child, may the Court require the previously mentioned stepparent to fulfill his or her obligation to support the minor child. Therefore, when a court orders support of a minor child, the court must first look to the biological parents of the child to provide for the reasonable needs of the child and can only look to a third party for support if the biological parents of the child requiring support cannot provide any support for the minor child or the minor child’s needs exceed what the natural parents can provide.

Dealing with a separation and divorce can be difficult, especially when child custody is involved. The holidays can present a whole new set of challenges for separated and divorced parents. In addition to developing a regular custodial schedule for the children, parents must also decide where and with whom their children will spend their holiday time now that mom and dad live in two different houses. In thinking about a schedule that will work for the new family unit, it is important to consider several factors. First, to the extent possible, the children’s holiday traditions should be preserved. For example, if throughout the parties’ marriage, the children had Thanksgiving lunch with their paternal grandparents, and Thanksgiving dinner with the maternal side of the family, the parents may want to consider implementing a visitation schedule that allows both parents the opportunity to take the children to their respective family’s holiday activities.

Another issue that often arises is whether parents should alternate major holidays with the children or attempt to divide each holiday period. In determining the preferred schedule, parents should keep in mind whether either parent may need to travel out of state with the children to visit extended family for the holidays. If that is the case, parents may prefer a schedule that allows them to alternate various holidays on an annual basis, rather than try to divide each individual holiday. For example, rather than attempting to divide Thanksgiving Day, parents may instead choose to alternate the entire holiday weekend such that dad has custody of the children from after school the last day preceding the holiday weekend until the following Sunday in even numbered years, and mom has this same time with the children in odd numbered years.

Typically, for the major holidays such as Christmas or Hanukkah which often coincide with a longer break from school, parents choose to divide the school break evenly such that the children spend the first half of the school break with one parent, and the second half of the school break with the other parent. Parents may then choose to divide Christmas Eve and Christmas Day such that one parent would have custody of the children from Christmas Eve at a particular time until mid-morning on Christmas Day. The parents would then alternate these times on an annual basis.

In addition, parents should consider a custodial schedule that maximizes the children’s time with both parents. Children benefit in different ways from spending time with each of their parents. In situations where both parents are suitable caregivers, mom and dad may want to consider a schedule that allows the children to spend as much time as possible with each parent. Many different options exist for shared custodial arrangements. Some separated families choose to share custody of their children on a weekly basis such that the children live with mom for one week and dad the next week. Other families choose to share custody of their children such that mom has the children every Monday and Tuesday, dad has custody of the children every Wednesday and Thursday, and the parties alternate the weekends such that the children are with mom Friday, Saturday and Sunday in week one and with dad for those days in week two. There is no right or wrong answer here. The key is to pick a custodial arrangement that works for your family.

While the holidays can present unique challenges for separated and divorced families, by maintaining the children’s traditions and implementing a schedule that accommodates both parents, these challenges can be overcome. Overall, flexibility and a willingness to compromise when dealing with issues of child custody go a long way to ensure that the children and both parents enjoy their holiday time with one another.

For more information on Child Custody in North Carolina bookmark this page.

Raleigh, NC – Raleigh, Raleigh divorce lawyers Gailor, Wallis & Hunt announce the launch of a new interactive resource to communicate effectively with people seeking legal information and support.

At www.gwhdivorcelawyers.com, men and women who need help from an experienced Raleigh divorce lawyer or family lawyer through the new and innovative VisionSmartNews can access a portal containing articles, digital media and other resources with abundant information on their legal rights in connection with specific family law issues including, child custody, child support, postseparation support, alimony, equitable distribution of property, alienation of affections and other marital torts.

In addition, visitors can use the portal to request a free case review and directly connect to the firm via social media websites such as YouTube, Facebook and Twitter..

An Innovative Approach to Improving Communication

North Carolina family lawyers Gailor, Wallis & Hunt are among the few premier family law firms to understand the importance of building a presence on the social media sites clients are using, in addition to other platforms. Gailor, Wallis & Hunt has a strong commitment to providing clients with convenient access to valuable and useful legal information and assistance in all family law and divorce matters.

With the VisionSmartNews social media interactive portal, more people seeking legal assistance from experienced and highly competent divorce attorneys in North Carolina now have immediate access to high-quality legal information and help.

About Gailor, Wallis & Hunt

Founded in 1994, Gailor, Wallis & Hunt is one of North Carolina’s most distinguished family law firms. Based in Raleigh, the firm’s attorneys have a combined 120-plus years of experience advocating for clients in matters of divorce, child custody, property division, separation, postseparation support, alimony, alienation of affection and other family law matters.

Gailor, Wallis & Hunt can provide those who need a Raleigh family law attorney unique information services with the option of one-on-one communication to discuss and understand their legal options—a distinctive approach among firms that specialize in divorce and family law practice.

Gailor Wallis & Hunt

Raleigh Divorce Lawyers

When parents of young children divorce, the whole family is affected, including grandparents. In an ideal situation, divorcing spouses allow and encourage their children to continue having contact with family members of both parents. Unfortunately, that’s not always the case. Conflicts that arise during divorce sometimes lead to one or both divorcing parents to refuse to allow the children to see the other spouse’s parents. What can grandparents do in this situation?

In North Carolina, under limited circumstances, the law protects grandparents’ ability to continue seeing their grandchildren after the parents divorce. Courts can award grandparents “independent” visitation – time in which to visit their grandchildren that is not contingent upon the divorcing parents’ approval – if the court determines that the visitation would be in the grandchildren’s best interest.

The first thing grandparents need to know, if they are thinking about seeking visitation through the courts, is that in most cases they must file a “Motion to Intervene” in the parent-spouses’ custody case while the custody case is pending. A “Motion to Intervene” allows grandparents to enter a custody case by becoming a party to the case. If grandparents fail to file a “Motion to Intervene” before the custody case is resolved, the “door is closed” and grandparents no longer have the legal ability to seek independent visitation through the courts.

North Carolina’s “grandparent visitation” statutes apply to various circumstances in which grandparents may seek to intervene and, if permitted to intervene, then seek visitation with their grandchildren. The statutes are as follows:

• N.C. Gen. Stat. § 50-13.2(b1) states that “an order for custody of a minor child may provide visitation rights for any grandparent of the child as the court, in its discretion, deems appropriate.” North Carolina appellate courts have indicated that if a grandparent can show a “substantial relationship” with the child and a custody suit is pending, grandparents have a right to intervene.

• N.C. Gen. Stat. § 50-13.2A entitles a grandparent to seek visitation when the child is “adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child.” Under this statute, there need not be a pending custody case.

• N.C. Gen. Stat. § 50-13.5(j) entitles a grandparent to seek visitation “in any action in which the custody of a minor child has been determined, upon a motion in the cause and a showing of changed circumstances pursuant to N.C. Gen. Stat. 50-13.7.” Under this statute, a grandparent must show that he or she has a “substantial relationship” with the child, and also that a “substantial change of circumstances affecting the welfare of the child” has occurred since a prior custody order was entered (more about this topic in a coming article).

• N.C. Gen. Stat. § 50-13.1(a) entitles a grandparent to “institute an action or proceeding for custody” of a grandchild under certain circumstances. Under this statute, a grandparent may sue for custody (not visitation) on grounds that the parents are unfit or have “acted inconsistently” with their constitutionally protected status as parents (this topic was addressed in a prior article). However, grandparents are not entitled to seek visitation under this statute when there is no pending custody suit and the grandchild’s family is “intact,” that is, neither parent has filed a custody suit and custody is not an issue being considered by the court. Further, North Carolina’s courts have made clear that a grandparent’s suit for custody is a very different type of case than a grandparent’s suit for visitation.

Under each of these statutes, it is the grandparents’ legal burden to prove to the court that he or she has a substantial relationship with the child, and that it is in the child’s best interest that the grandparent be awarded independent visitation.

Parents facing a potential suit from grandparents seeking visitation may wish to examine whether the grandparent does, in fact, have a “substantial” relationship with the child, and be prepared to show the court that it would not be in the child’s best interest that the grandparent be awarded visitation.

Under either scenario, “grandparent visitation” cases can be complex. Grandparents thinking about seeking visitation with a grandchild, as well as parents faced with a grandparent’s suit for visitation, should seek the advice of a Raleigh family attorney with experience and skill in this area of family law.

North Carolina has some of the toughest domestic violence laws in the nation, with many of the protections aimed specifically toward the safety of children. Each county in North Carolina has a State-funded agency known as the Department of Health & Human Services (hereafter “DHS” and frequently referred as “Department of Social Services”). One of the primary functions of DHS is to prevent the neglect and abuse of children, including investigations of acts of domestic violence in the child’s home.

In many counties in North Carolina, if a law enforcement officer responds to an alleged act of domestic violence where children were present during the incident, the officer forwards a copy of the incident report to DHS for investigation and follow-up. This requirement of DHS review and involvement applies even if the children were not the intended victims of the physical violence, threatened or actual, but were present in the vicinity where the violence occurred. Many counties in North Carolina also have evidence-based prosecution for acts of domestic violence, meaning that the State of North Carolina can and will prosecute an offender for domestic violence even if the victim does not want to “press charges” and does not participate in the prosecution. Therefore, DHS could receive a report of domestic violence involving a child and therefore have a duty to investigate, even if the victim of the abuse does not want involvement by law enforcement or DHS. Studies have shown that children who witness domestic violence in any form are more at risk to abuse or become abused as adults; therefore, DHS takes such reports very seriously.

Once DHS is involved, they have a duty to investigate and assess the situation, including interviewing parents and witnesses. They will talk to the child if possible, and the DHS worker has the right to talk with the child without a parent’s permission if the worker deems the child’s safety warrants such action. Depending on the specifics of the violence or threatened violence, DHS can restrict either parent’s access to their children contingent upon the completion of certain requirements, sometimes contained in a DHS “Safety Plan.”

DHS representatives may attend any court appearances involving the alleged violence, whether in criminal or civil court, and the Court may incorporate any DHS recommendations into its order or judgment. Frequently, DHS will recommend that the victim-parent’s custody of his/her child(ren) is conditioned upon ceasing contact with the aggressor-parent. It is important for victims of domestic violence to understand that DHS has the authority to take custody of their children if they do not adhere to the Safety Plan, for instance by having contact with the abuser, even if the abuser is a parent of the children.

DHS will investigate whether the act of domestic violence constitutes “abuse” or “neglect” of the child. “Abuse” is the intentional maltreatment of a child and can be physical, sexual, or emotional in nature. Neglect, on the other hand, is the failure to give children the necessary care they need. Failure to protect one’s child from direct physical contact at the hand of an abuser or failing to remove a child from a home where he/she is exposed to domestic violence, even second-hand, can constitute abuse or neglect by DHS standards.

If an abuse victim does not heed the advice of DHS, the consequences can be severe. DHS can order the child be placed in foster care or with a relative, or recommend a lesser consequence such as counseling for the victim and/or the child. DHS could even recommend that the abusive parent be charged criminally and/or civilly with child abuse for continuing to allow the child to experience or witness acts of domestic violence. Abuse victims need to understand the risk they take by not removing their children from an abusive situation even if the children are not the victims of the physical abuse.

Prior to removing children from their parents, however, DHS will frequently recommend services that will keep the family together or provide for a plan of reunification. According to the NC DSS: Child Protective Services website, the program “strives to ensure safe, permanent, nurturing families for children by protecting them from abuse and neglect while attempting to preserve the family unit.” DHS may recommend and/or provide in-home and other supportive counseling services, substance abuse treatment, parenting classes and inspection of the child’s home environment on a scheduled or unannounced basis. DHS can perform random screening for drugs or alcohol and require that parents show proof of housing and employment. The power of DHS is great, as is their duty to the children as victims of domestic violence.

One of the first hearings that may occur in a divorce case is a hearing for child support and postseparation support (temporary alimony). In this hearing a judge will determine the following: the ability of each party to contribute to the support of the children; if one party is a dependent spouse, the ability of the dependent spouse to contribute to his or her own support; the supporting spouse’s ability to contribute to the support of the dependent spouse; and, his or her own support. Thus the judge must hear evidence concerning the income and expenses of both parties and the children. This evidence will be primarily in the form of the parties’ expense affidavits.

The dependent spouse is the spouse seeking child support and postseparation support from the other party. The dependent spouse’s expense affidavit must set out the current expenses for himself or herself and the children. This is based on the accustomed standard of living of the family as of the date of separation. Frequently, the dependent spouse has less money following a separation and accordingly less to spend on support of the children or herself or himself. If this is the case, then the current situation does not reflect the family’s accustomed standard of living.

The dependent spouse will need to obtain statements, bills, cancelled checks, credit card statements or other evidence of each expense over a 12 month period. This documentation is critical as it will be the backup for the figures on the expense affidavit. For each expense item, prepare a file folder with the 12 months of back up receipts or invoices. If you are familiar with Microsoft Excel, you can create a spreadsheet for the 12 months of each expense which will be easy to use in court and very helpful to your lawyer. If you have this backup information it will be very difficult for the opposing side to challenge the expense unless the spending was excessive and/or inconsistent with the family’s prior standard of living. Because some expenses vary in amount over a year, each expense item should be calculated over a period of a year (12 months) preceding the date of separation and then averaged. Thus, if your electric bill varies from $300-$500 per month over the prior year but totals $4,200 for the entire year, the average monthly cost will be $350. This average figure is the figure you will use on the financial affidavit. You will follow this procedure for every itemized expense on the financial affidavit. This is the key to your “bulletproof” expense affidavit. Yes, it is a great deal of work. But you and the children are worth it.

Sometimes, the dependent spouse does not have access to the financial information that is needed to prepare the expense affidavit. In this case you will need, early on, to tell your lawyer that you do not have access to the financial records so that the lawyer can request them from the other side or from the bank or credit card provider.

Some of the itemized expenses on the expense affidavit are in a category called “Regular Recurring Monthly Expenses.” These expenses consist of mortgage payments, utilities, car expenses, insurance and the like. These expenses are for the entire family and are not easily prorated among family members. The second category of expenses is “Individual Expenses.” These expenses consist of items such as uninsured medical expenses, food, clothing, gas, school expenses, camp and more. The cost of these expenses may vary from person to person and typically vary significantly between an adult and child. You must obtain the documentation for each expense to the best of your ability. If you are unable to locate the information necessary to document the expense, and cannot get it from your spouse, you may need to make a good faith estimate of the expense. In this case you should keep a notebook which details how you arrived at the good faith estimate of the expense and what you relied on to make the good faith estimate. The estimate must have a rationale basis: not a guess or wishful thinking. The goal is accuracy.

The worst thing you can do is inflate your expenses and be unable to support the expense affidavit. If the opposing side is able to demonstrate that you have inflated your or the children’s expenses, you will lose credibility with the court and the court may accept the opposing side’s version of expenses (usually considerably less) as valid. Underestimating your expenses can also have potentially devastating consequences and result in a support award in an amount considerably less than is needed. You will need to work closely with your lawyer and usually the lawyer’s paralegal staff who are trained in preparing the expense affidavits. The process will be less costly if you provide the information needed to the lawyer on a timely basis. The goal is a bulletproof expense affidavit.

When you find out your spouse has committed adultery, it is emotionally devastating. For some people, the emotional toll is so great that it causes significant depression, anxiety and other mood changes that affect their work and home life in a significant way. Some people experience severe insomnia, racing obsessive thoughts, sudden weight loss or uncontrollable crying . The emotional and mental fallout can last years. This is why family law clients often ask if they can sue the unfaithful spouse for emotional distress. The answer, in North Carolina, is more than likely “no.”

There are exceptions to this general rule. In North Carolina, you may sue your spouse for intentional infliction of emotional distress (IIED) if his or her conduct toward you was so “extreme and outrageous” that it caused you severe emotional distress. In these cases, the plaintiff demands that the defendant pay money to compensate for the harm caused by the spouse’s harmful conduct. Punitive damages also may be awarded.

Generally, however, spouses cannot sue one another for the emotional damage caused by an affair. Why not? In IIED lawsuits, the defendant’s conduct must be more than insulting, bothersome or offensive. The conduct has to be considered so “extreme and outrageous” that it “shocks the conscience” of the average person. A judge, rather than a jury, initially decides whether the alleged conduct meets this legal threshold. So far, in these cases between spouses, North Carolina appellate courts have not ruled that adulterous conduct is, in itself, rises to the necessary “extreme and outrageous” legal standard. This is consistent with the majority of appellate court decisions of several other states that have addressed the same issue.

Does that mean a spouse who has been cheated on has no remedy? Not necessarily. While the threshold for extreme and outrageous conduct may be so high in emotional distress claims between spouses as to effectively prevent most claims, at this point the North Carolina appellate courts have not absolutely ruled that under no circumstances can one spouse sue the other for conduct related to an affair. Each case is fact-specific and should be analyzed individually on its own merits For example, if your spouse contracted herpes from an adulterous affair and then transmitted it to you (or vice versa), your case involves more potential claims than adultery. In that situation, a court may find the conduct to meet the extreme and outrageous threshold and allow an emotional distress claim (as well as a variety of other claims).

Additionally, if your spouse cheated on you, or you cheated on your spouse, while you were living together in North Carolina, the third-party paramour (the person with whom you or your spouse had and affair) could potentially be sued for alienation of affections and/or criminal conversation. North Carolina is one of the few states that still recognize these two claims.

A person may be liable for alienation of affection if the plaintiff can prove the three things. First that there was genuine love and affection between the spouses. The marital relationship does not need to be perfect; it is enough to show that some degree of love and affection existed before the third party’s interference. Second, that the defendant’s conduct intended to destroy the marital relationship. In this regard, the third party’s reckless indifference to the fact that the behavior would destroy the marriage is sufficient to show intent. Third, that the conduct did in fact damage the marital relationship. The affair does not have to be the sole reason the marriage ended. It is sufficient if it was a controlling cause.

Criminal conversation on the other hand, is simply having sex with a married person who is not yet separated from his or her spouse. If you have sex with a married person in North Carolina who is not yet separated, you could technically be sued for criminal conversation, even if there was no genuine love and affection between the spouses and even if your actions did not cause the marriage to end. As a practical matter though, most criminal conversation lawsuits are typically filed along with alienation of affection claims, in situations where the person leaves their spouse to be with the affair partner.

In determining what amount of damages to award in both alienation of affection and criminal conversation cases, the jury considers a variety of evidence, including the mental anguish and emotional distress suffered by the plaintiff, injury to the plaintiff’s reputation, loss of support, and loss of consortium (i.e. loss of the marital fellowship of the other spouse). The jury also considers the quality of the parties’ marriage prior to the third party’s interference. As a general rule, a jury is likely to award more damages when the evidence shows the spouses had a really good relationship prior to the affair. On the other hand, damages awarded, if any, may be minimal when the spouses had significant marital troubles even before the third party got involved, such where there were past affairs by one or both spouses before the third party ever came into the picture. It is even possible for the jury to decide that the defendant is liable for criminal conversation as a result of having sex with the plaintiff’s spouse, but that the defendant is not liable for alienation of affection, and award the plaintiff nominal damages of only One Dollar.

Some North Carolina plaintiffs have received large monetary awards in alienation of affection and criminal conversation cases. In recent years, at least two North Carolina plaintiffs have obtained multi-million dollar judgments against the paramour. In both of these recent cases the defendant did not appear at trial to defend against the lawsuit, which likely impacted the amount of the award. In cases where the third party defendants the lawsuit, it is more difficult to predict the outcome, especially if the trial is in front of a jury rather than a bench trial by a judge only. Either party is entitled to demand a jury trial in alienation of affection and criminal conversation cases.

The decision of whether to file a lawsuit for alienation of affection and criminal conversation should not be made lightly. The lawsuit is not a one way street. The lawsuit can be very expensive to pursue, especially if the defendant decides to appear and vigorously defend against the claims, as if often the case. The costs include not only attorney’s fees but in many instances additional costs associated with retaining expert witnesses. Plaintiffs should also be prepared to have their marital relationship and personal life put under a microscope. When a plaintiff claims damages related to mental anguish and emotional distress, it usually opens the door for the defendant to get access to the plaintiff’s medical and mental health records. To some, having to turn over sensitive, private mental health information to the defendant simply adds insult to injury. Lastly, in many situations, the defendant has few assets that could be used to satisfy a judgment. All of these factors (as well as others) should be taken into account in deciding whether to file a lawsuit against a third party for committing adultery with your spouse.

(Raleigh Family Lawyer News) – When parents remarry, their new spouses may wish to adopt their new stepchildren. North Carolina law contains specific provisions that, under certain circumstances, allow stepparents to adopt their minor stepchildren (children younger than age 18). If the court approves the stepparent’s petition to adopt the children, the stepparent becomes the legal parent of the children, with the same legal rights as the children’s biological parent. If the biological parent and adoptive stepparent later divorce, the stepparent may seek custodial and visitation rights with the children; from a legal perspective, the biological and adoptive stepparent are on equal legal footing.

But what if the stepparent has not adopted the children? Can he or she seek visitation or custodial rights? What are biological or adoptive parent’s (for purposes of this article, “legal parent’s”) rights in these cases?

North Carolina statute allows “any parent, relative, or other person” to file a lawsuit for custody of a minor child. But North Carolina case law restricts the courts’ ability to award child custody in North Carolina to a nonparent or “other person.” Under North Carolina case law, a judge may allow a nonparent (such as a stepparent) to seek custody or visitation only if this “other person” has a relationship with the child that is “in the nature of a parent-child relationship.”

North Carolina case law has established that a stepparent qualifies, under this “parent-child relationship” standard, as an “other person” who may seek custodial and visitation rights. However, even though a stepparent may be legally “qualified” to seek custody and visitation, he or she must overcome a constitutional hurdle before the court may decide whether it is in the child’s best interest that the stepparent have custody or visitation.

Federal and state cases have consistently held that legal parents have a constitutionally protected right (or “privilege”) to the “exclusive care, custody and control” of their children. The legal parent’s “privilege” includes both the right to custody and the right to make decisions about the people with whom the child spends time. Therefore, in a custody suit between a legal parent and stepparent (or “other person”), the court gives preference to the legal parent.

But stepparents and “other persons” seeking custody and visitation are not without legal rights in these cases. Although the court must presume that the legal parent has constitutionally protected rights, the stepparent or “other person” may allege facts that lead the court to find that the legal parent has waived her constitutional privilege. In other words, the stepparent seeking custody or visitation can “rebut” (overcome) the presumption that the legal parent has preference over the stepparent or any “other person” in a custody case.

To rebut this presumption, the stepparent must allege and prove facts that show the parent is either unfit or has otherwise “acted inconsistently” with his or her constitutional rights. If the stepparent makes her case and successfully overcomes this presumption , the judge can then decide whether it is in the child’s best interest that the stepparent have custody or visitation rights. Absent this threshold finding that the legal parent acted inconsistently with her constitutional privilege, however, the court may not make any determination about the best interests of the child or, it follows, award custody or visitation rights to anyone other than a legal parent.

What does it mean to “act inconsistently” with the parental privilege? A judge does not necessarily have to find that a legal parent is unfit in order to grant custody or visitation to a stepparent or “other person.” A judge may find a parent is a fit and proper person to have custody of the child, but that the parent’s actions and intentions were not consistent with those of a parent wishing to retain the protected privilege. For example, a stepparent might overcome the presumption by showing that the legal parent voluntarily relinquished custody of the child to the stepparent for a period of time without making clear that this arrangement was temporary. Or, a court could find that a legal parent waived his constitutional privilege by encouraging and building a relationship between the child and stepparent that was like that of a parent and child.

Appellate decisions in recent years have clarified that judges should focus on whether the legal parent voluntarily chose to create a family unit and to cede to the stepparent (or “other person”) a significant level of parental and decision-making responsibility. Appellate courts have said the trial court’s focus should be on the intent and conduct of the legal parent, rather than that of the stepparent, “during the formation and pendency of the parent-child relationship.” That is, the judge must consider evidence of the legal parent’s intent and conduct during the marriage, rather than after the separation, with regard to the stepparent’s role in the child’s life.

If you are a stepparent who has not adopted your stepchildren, or you are a legal parent who has separated from your child’s stepparent, you may wish to consult a North Carolina Board-Certified Raleigh family lawyer to determine your potential custodial and visitation rights.