TURNING 18? GOT YOUR POA’S LINED UP?

TURNING 18? GOT YOUR POA’S LINED UP?

By Kim K. Steffan, Attorney

 

High school graduations make me think about kids becoming adults, leaving the nest, or making their way in the world. You may not have thought about why a financial power of attorney (POA) and a health care power of attorney (HCPOA) are important for young adults upon turning 18.

As our teenagers happily remind us, turning 18 makes one legally an adult.  If you are a parent of a 17 year old, you’ve been used to making decisions for him or her, giving permission for activities, maybe opening and managing a savings account for him or her, and receiving medical information.  All of a sudden, once your child turns 18, you as a parent no longer have the automatic authority to do those things, even if your child still resides at home.  A doctor may refuse to provide you medical information about your adult child because doing so would violate HIPAA.  Banks may refuse to allow you to move money from your child’s savings account to his checking account when he is in college, even if you used to do that for him.  How can we avoid these problems?

Young adults, like any other adults, should consider having a financial power of attorney (POA) and a health care power of attorney (HCPOA).  The financial power of attorney appoints someone else to handle their financial matters.  This includes getting their bills paid, moving money from one account to another, and signing contracts.  The POA can be set to appoint someone to act only if the young adult is physically or mentally incapacitated (e.g., due to accident or illness) or it can be set to allow someone he/she trusts to do these things anytime for his/her convenience (e.g., when he/she is away at college, traveling before starting a job, etc.).  A POA should be made effective anytime only if the person being appointed is someone the young adult fully and completely trusts, because it means that person can take actions about his/her finances, credit, and bank account even when the young adult is perfectly capable of handling these things for himself/herself.

A health care power of attorney (HCPOA) appoints someone to make medical decisions only if the person making the document cannot make those decisions for himself/herself.  If a young adult appoints a parent on her HCPOA, it means that if she has an injury or illness making her unable to make medical care decisions, the parent would be authorized to receive information from the doctor or hospital, and to make decisions based on that information.

Young adults most commonly appoint one or both parents (or, if raised by someone else, that person) to serve on their financial and health care powers of attorney.  Over time, the young person may develop other relationships making it logical to change the person appointed, like when he/she marries or has a long-term relationship.  The documents can always be updated later.

Many attorneys will prepare financial and health care powers of attorney for young people who have recently turned18 at a courtesy (inexpensive) fee that doesn’t cover the lawyer’s time.  Lawyers often do this just to help out, because they know it lets the family rest easier.  It is always acceptable to ask for fee information from a lawyer’s office either before scheduling an appointment or before the lawyer begins work for which you could be charged.

 

Kim K. Steffan is an attorney with Steffan & Associates, P.C. in Hillsborough.  She can be reached at 919-732-7300 or kim.steffan@steffanlaw.com.

 

STANDBY GUARDIAN LAW

          Suppose you have been appointed by a Clerk of Court as the guardian (meaning either a general guardian or a guardian of the person) of an adult relative who is incompetent because of dementia, intellectual disabilities, or developmental disabilities. What if you then develop progressive or debilitating health problems of your own? How can you protect your loved one if your health problems at some point make you unable to serve, or even cause your death? A section of Chapter 35A of the NC General Statutes added in 2015 allows you to name a “standby guardian” to take your place if necessary.  It expands upon an existing statute allowing seriously ill parents of minor children to name a standby guardian for their children, to serve in the event of the parent’s death or disability.

          The standby guardian is someone who acts as a back-up guardian, ready to assume the responsibilities of a guardian of the person or a general guardian upon a triggering event, including the current guardian’s death, mental incapacity (as determined by the Clerk), or sooner upon the current guardian’s written consent (which may be a decline in physical health).  Without naming a standby guardian, if the current guardian died or became incapacitated, there would be a gap leaving no one serving as guardian until the Clerk is able to hold a hearing to appoint a new guardian.  Also, in that situation, the Clerk would not have the advantage of knowing whom the original guardian thinks would do a good job next.

          However, the standby guardian process is only available when the current guardian suffers from a progressive chronic or irreversible fatal illness.  It is not available when the current guardian is healthy.  You may be thinking that it should be available to any guardian since even a healthy guardian can be “hit by a bus” and killed – and you’d have a good point.  At some point in the future, a further expansion may permit this for any guardian, but not yet.

          If you are a guardian with a progressive chronic or irreversible fatal illness, you have two options to appoint a standby guardian.  One is by petition.  Until more specific forms are developed, use AOC Form E-209, which is the form for guardians of minor children.  The Clerk will hold a hearing to confirm both the guardian’s progressive illness and the suitability of the person nominated as the standby guardian.  Then the Clerk will enter an order appointing the standby guardian and issue him/her letters of appointment that list the conditions upon which the power becomes effective. When the standby guardian receives documentation of the triggering event (like a death certificate for the original guardian), he/she must file it with the Clerk.

           The other way to name a standby guardian is by a written designation witnessed by two adults.  When the standby guardian receives any of the documents listed in the statute for a triggering event, his authority begins.  However, he still must file a petition with the Clerk within 90 days of receiving documentation of the triggering event. If the Clerk finds the statutory requirements have been met, the Clerk will enter an order appointing the person and issuing guardianship letters to him/her.

          While the statute does not address all problems involved in managing guardianships of adults, it does solve one.  For more information on standby guardianships, contact the Clerk of Court’s office or consult an attorney.

 

 

PATERNITY QUESTIONS TAKE MANY FORMS

Paternity and legitimation questions come in many forms. Who decides what father’s name is on a birth certificate?  What rights and responsibilities go with paternity?  Can illegitimate children inherit from their father?

First, who gets on a birth certificate, and how?  If the mother is married (even if she is separated), her husband is listed as the child’s father on the birth certificate, no matter whom she identifies as the father. That may seem odd, but a statute requires this because there is a starting presumption that her husband is the father.  If her husband is not the father, then there will have to be additional legal steps taken (and DNA testing) to establish paternity.

If the mother is not married, hospital staff will ask the father’s name.  The father may be there to provide the information himself, which makes things easier. If the father isn’t present and the mother says she does not know who the father is, no father is listed on the birth certificate.  If she supplies a name for the father, that name is listed.

You can see how people might have different ideas about who is or may be the father, and how paperwork at the hospital may create problems.  If a mother lists a father’s name but he denies it, he will need to get a DNA test.  Fortunately, now DNA testing is done by swabbing the inside of baby’s and Dad’s cheeks.  It used to require a blood draw.  A court will enter an order based on the DNA test either confirming paternity or not (and taking the father’s name off the birth certificate if appropriate).

The other side of that coin is when the mother lists no father on the birth certificate, but a man who feels sure he is the father wants to have the legal rights of a father.  He can file a legitimation action (which also involves a DNA test).  If the test shows a match, the court will enter an order recognizing him as the father, determining the child to be legitimate as defined by statute, and adding the father to the birth certificate.

Paternity matters for custody rights and for support responsibilities. Legal recognition as a father includes the right to participate in making decisions about the child, and the ability to ask the court to grant the father visitation or (in the proper circumstances) physical custody. By law, both parents have the responsibility to provide reasonable financial support for their child.  If either parent is under age 18, that parent’s parents (the baby’s grandparents) are required to provide support on his/her behalf until he/she reaches age 18. Once the parent reaches age 18, the responsibility of support for the baby is his/hers; grandparents may choose to help, but aren’t legally required to do so.  If the child’s mother needs help from the county Child Support Enforcement Office to establish and collect child support, that office will also assist with the paperwork necessary to establish paternity.  Establishing paternity is a critical part of establishing a child support obligation.

Legitimation or a legally sufficient acknowledgment of paternity (both of which require taking legal steps) matters for inheritance.  Without that, illegitimate children do not inherit from fathers in NC except through a will.  If a man dies without a will, survived by two children by his late wife and one outside the marriage whom he treated like his own but never legally acknowledged or legitimated, his estate will go to his two legitimate children, excluding the other child.  Without legitimating the child, he could still arrange for the child to inherit from him by having a will that includes all three children.  A will doesn’t solve all the legal problems that arise from having an illegitimate child, but it does solve one.

 

Domestic Violence Resources in Orange County

            By government statistics, 1 in 4 women and 1 in 7 men in the U.S. will, sometime in their lifetime, suffer physical violence at the hands of an intimate partner. 

            Orange County is a leader in addressing domestic violence.  Under Sheriff Pendergrass, Orange County became the first county in the state (and still one of a few) to have a special unit to assist domestic violence victims.  Social workers within the Department make victims more informed so they can make better decisions; they also focus on the practical needs of the families involved.  Their office serves over 1100 people annually. Yearly training for deputies includes updates on domestic violence issues.  Officers must know how to handle these potentially explosive situations.  In addition to arresting offenders, responding officers can help victims with transport to medical care or shelter, and with securing basic items needed for themselves or their children if they wish to leave the home. 

            Legal tools to address domestic violence include civil 50B orders (also known as DVPOs, which stands for Domestic Violence Prevention Order) and criminal charges.  About 75% of the time, when a DVPO is entered, there are also criminal charges (most commonly assault or communicating threats).

            A DVPO can be obtained when the defendant has caused or attempted to cause bodily injury, or places the plaintiff (or plaintiff’s family/household member) in fear of immediate serious bodily injury or subjects her/them to continued harassment.  In this instance, “continued harassment” means something serious that is beyond annoyance, such as stalking.  DVPOs are available against a spouse, former spouse, current or former dating partner of the opposite sex, member of the opposite sex with whom the victim lives or lived, or a person with whom there is a child in common. 

            The process usually starts with an emergency ex parte order, signed by a judge based on the plaintiff’s written application, followed by a hearing within 10 days.  Defendants should understand that, just because a judge has signed an emergency 50B based on the plaintiff’s paperwork, it does not mean he/she has prejudged the case.  After presentation of the evidence at the 10-day hearing, a judge may continue the order in effect, modify it, or dismiss it entirely.  Judges do not look favorably on anyone who misuses the 50B process to gain an advantage in an ordinary custody or property division case when there is no real fear of violence.

A 50B Order requires the defendant to stay away from the plaintiff (and sometimes the children, depending on whether their safety or well-being is at risk), not to communicate with the plaintiff (and sometimes the children) except as the Order allows, not to threaten the plaintiff directly or through other persons, and to surrender firearms.  Depending on the case, the DVPO can also grant temporary possession of the residence and/or a vehicle, award temporary child custody and/or support, order the defendant to stay away from the children’s school, and provide for the safety of pets. 

DVPOs last for one year.  They can be renewed for an additional year, but custody provisions cannot be renewed.  So, if you have a 50B Order entered with custody provisions, you should plan to do something else to secure custody rights before that first year ends.

A 50B Order is not a bulletproof vest and is not the best solution for everyone.  The Sheriff’s Office social workers can help sort out these issues.  For example, severe mental illness may make an offender unwilling or unable to obey an order, and getting served with one may just push him or her over the edge.  In other cases, a 50B Order or criminal charges may jeopardize the defendant’s job, which could cause a loss of income and benefits for the entire family.

As of writing this article in 2013, Orange County does not have a domestic violence shelter.  Compass Center in Chapel Hill assists domestic violence victims with emergency shelter at hotels or in shelters in nearby counties.  Visitation supervision may be needed to let the defendant see his or her children safely, but Orange County also does not have a supervised visitation center.  The Family Visitation Center in Pittsboro is the closest one, but suitable friends or family members may enable the defendant to keep up his or her relationship with the children in a safe setting.

Resources to help with domestic violence include Orange County Sheriff’s Department (919-644-3050, or 911 anytime) and Compass Center’s 24 hour hotline (919-929-7122).  Many thanks to the Orange County Sheriff’s Office for their assistance with this article.

Legal Protections for Unmarried Couples

Many people have questions about the legal needs of unmarried couples, regardless of their gender.  There are many steps unmarried couples can take to achieve legal protections similar to or equal to those of married couples.  However, there are some legal benefits to being married that cannot be duplicated.  How close can unmarried couples come to having the same legal protections as married couples?

            Real Property Ownership:  Many couples want to own real property together with a right of survivorship, so that when one passes away, the other one owns the property outright automatically.  For married couples, having both spouses’ names on the deed does this.  Unmarried couples can add “joint with right of survivorship” to their deed.  However, married couples also have the advantage that a creditor can take the property only if both spouses owe the creditor money.  If only the husband or only the wife owes the creditor money, the creditor cannot force the sale of the land. 

            Health Care Decisions:  A spouse does not have an automatic right to make medical decisions for the other.  Spouses and unmarried partners need Health Care Powers of Attorney appointing the other person to make those decisions. 

            Hospital Visitation:  Believe it or not, hospital policy governs this, not a law.  Hospitals commonly have a policy that only “immediately family” (usually meaning spouses, children, parents) can visit in ICU.  Unmarried partners can sign hospital visitation forms instructing that the other partner be allowed to visit.  Most hospitals will respect these forms, but they are not required to.

            Financial Authority:  A spouse does not automatically have the right to take financial actions on behalf of the other.  Spouses and unmarried partners need durable financial Powers of Attorney to have that authority.

            Inheritance:  A spouse has a statutory right to inherit some part of the other spouse’s estate when there is no will.  However, it is not a complete right.  When one spouse dies, if he is survived by children or by a parent, they will share in the estate along with the spouse.  For that reason, it is important that both married and unmarried couples have wills if they want their entire estate to go to their partner.  It is even more important for unmarried couples because without a will, they will not share in each other’s estate at all.

            Statutory Benefits:  Many state and federal laws give benefits only to spouses or to surviving spouses.  These statutes do not allow those benefits to go to unmarried partners or to anyone other than a spouse.  For example, surviving spouses of military servicemembers and veterans are entitled to certain benefits.  At the state level, surviving spouses of disabled veterans can keep the county property tax exemption used by the veteran when he/she was alive.  Under a federal law called ERISA, a spouse must consent before an employee withdraws money from his/her company retirement account.  Social Security law allows a spouse to have retirement benefits calculated based on his/her own earnings history or on his/her spouse’s earnings history if it is higher.  Benefits available by law to spouses or surviving spouses usually cannot be duplicated or transferred to unmarried partners.

            Property Division After Separation:  Please see the separate article on this website on this issue, as it requires a more lengthy discussion.  In short, North Carolina courts apply equitable principles similar to both business divisions and trust cases to divide property of unmarried couples.

            This column cannot cover all of the legal issues facing unmarried couples.  It is intended to highlight some common ones.

How to (Not) Mess Up Your Divorce Case

The process of separation and divorce can be difficult in many ways – financially, emotionally, and legally. It can be hard to learn what you need to know to make informed decisions and to protect your rights. Sometimes a misstep cannot be fixed.

What are some traps for the unwary in the process of separation and divorce?

  1. Accidentally cutting off your right to have the court divide property and debts: If a divorce judgment is entered by the court before property and debts have been divided, and the judgment does not specifically say the court continues to have the right to make that division, that right is lost. If that happens, any assets titled in your name remain yours; any assets titled in your spouse’s name remain his or hers. You cannot ask the court later to give you the vehicle you have been driving that is titled in your spouse’s name. Similarly, if this happens, debts in your name are your responsibility, and you cannot ask a judge later to make your spouse contribute to payment of those debts. Debts in your spouse’s name are his or her responsibility. Joint property (or debts) continue to be owned (or owed) together in equal shares, which can be messy.
  2. Accidentally cutting off your right to alimony: This works like the property division rule. If you think you would have a right to alimony, but you do not specifically mention it in the divorce judgment, that right goes away when the divorce judgment is signed.
  3. No “do-overs” on property/debt provisions or on alimony waivers in a Separation Agreement: Once you sign a Separation Agreement, you are stuck with the property and debt provisions for better or worse. If the Separation Agreement waives alimony, that claim is gone for good. You cannot change the Separation Agreement unless the other spouse agrees. Usually, you cannot ask a court to rule differently if you decide later that the Agreement you signed was not fair. For example, if you didn’t know when you signed that you had a right to part of your spouse’s retirement plan, but the Agreement gives the plan to your spouse, a court cannot change that result.
  4. Separation Agreement provisions concerning child support or child custody: You may know that a court always has jurisdiction to change child custody and child support provisions to protect the child, even if parents have agreed upon them. However, you should be careful when setting custody or child support arrangements in a Separation Agreement. By agreeing to particular custody or support terms, the parties create a presumption for the court that those arrangements are fair, reasonable and in the child’s best interest. If you want to change those arrangements, you have the burden of showing why those arrangements were good and fair when the Agreement was signed, but now no longer are. That is a harder job for you than if there were no arrangements already in a Separation Agreement.

Separation and divorce are among the most difficult and painful experiences a person may go through. Emotions may run high. Financial pressures may increase. Children may need more of your time and attention to adjust. It can be hard to learn what you need to learn to protect your rights in that situation. It is important to learn those rights, though, as the decisions you make may have permanent or long-lasting consequences.

Property Remedies for Unmarried Couples

A 2010 N.C. Court of Appeals case (Cury v. Mitchell) gives options for unmarried couples to have a judge divide their property. You probably know that judges have always had the right to divide the property of married persons when they separate. The current version of the law is called, “equitable distribution.” Because equitable distribution only applies to married people, when an unmarried couple separates, this law is no help. Until recently, it was thought that there really weren’t any remedies for unmarried persons who separated – whoever had title to assets owned them, and the other person was out of luck. That was true for unmarried couples of different genders or of the same gender. That didn’t seem fair or practical, since many unmarried couples’ finances were as intertwined as those of married couples.

A recent case took a very practical approach. Judges applied an old, traditional legal rule to a new subject matter. The Court used the traditional rule of “constructive trust.”

What is a constructive trust?

You probably know that a “trust” is when one person (a “trustee”) owns legal title to an asset, but they are responsible for managing the asset for the benefit of another person (the “beneficiary”). Most commonly, someone sets up a formal, written trust by a trust agreement or in his will. A “constructive trust” is when there isn’t a formal, written trust, but the court acts like there is because that seems like what the parties intended.

Constructive trusts have been used for a long time in business partnership cases. For example, assume two friends go into a partnership together and contribute equal amounts of money to buy a piece of land for investment, but for convenience they title the land in just one partner’s name. If the partnership fails and the one who has title to the land claims it is just his, the Court will say, “No.” The Court will rule that this is a “constructive trust,” where the one with legal title is treated like a trustee for the benefit of the other party. The one who contributed money and trusted his partner will be treated fairly and equitably.

The Court of Appeals recently said this same model should apply to unmarried couples. If two unmarried people go in together to buy a residence, but for some reason title it in just one person’s name, the one who isn’t on the deed will still be protected. In a lawsuit, the Judge will recognize an ownership interest in the one whose name is not on the deed. The same is true for any sales proceeds if the one whose name is on the deed has sold the property before suit is filed. It appears likely that the Court will apply the same rule to other assets – vehicles and bank accounts, for example – to achieve a just and fair result.

It remains to be seen if this same theory will apply to retirement contributions one unmarried partner makes to his plan. A constructive trust result seems most likely if the other partner shows that they used her income to live on, intentionally to free up some money to be invested in one partner’s retirement for joint benefit. In other words, both lived off her income, and both planned to live off his retirement income later in life. It will be interesting to see what happens.

How to Collect Child Support

Children need financial support from both parents. When parents don’t reside together, what options exist to help establish and collect child support?

Regardless where you are in the process, you usually have two options to get assistance: a private attorney or the Child Support Enforcement Office (CSE). One option may be better in some circumstances, and the other option may be better in other cases. Let’s look at the differences.

Setting the amount of child support is always the first step. Child support amounts can be set by written, notarized agreement (like a Separation Agreement) or set by a judge. If you have a private attorney already working on a Separation Agreement, he or she can help you with calculating the correct amount of support to include in the Agreement. If CSE helps establish the amount of support, they will contact the other parent and try to reach a written agreement that becomes a court order (called a Voluntary Support Agreement). If agreement isn’t possible, either the private attorney or CSE can put the case before a judge to decide the amount of support to be paid.

Once an amount of support is established, it needs to be collected. CSE is an excellent and economical choice for many cases. The federal government set up CSE in 1975 because better child support collection reduces public assistance expenditures. It produces a net savings of tax dollars. However, CSE helps anyone, regardless of income. Their application fee is $25. For most custodial parents, that is the only expense. As a government agency, CSE has some resources that private attorneys do not. For example, CSE has access to the Employment Security Commission records to show where a parent works and his/her earnings. CSE intercepts tax returns automatically to apply to a child support arrearage. Also, CSE has leverage in being able to have a delinquent payor’s drivers’ license suspended; that isn’t used much because losing a drivers’ license can mean losing a job. Finally, CSE has sister agencies in other states, making it easier to handle cases where the other parent lives in another state.

Which cases are better suited for a private attorney? If it will be difficult to establish the noncustodial parent’s income for some reason, like if he/she is self-employed or works for cash, a private attorney may be a better choice. These cases often use discovery (requiring the non-custodial parent to answer written questions under oath, to produce documents, or to testify at a deposition). They sometimes require expert witnesses who can take the parent’s expenses and work backward to calculate the income needed to live that lifestyle. With CSE’s caseload, such cases are difficult for CSE to pursue in as much detail as a private attorney could. In addition, CSE does not have the budget to hire expert witnesses or incur deposition costs for clients. Some clients may simply prefer to have more personalized service that comes with private counsel. Of course, a private attorney is much more expensive than CSE. A judge may (but is not required) to order the other parent to reimburse your private attorney’s fees.

Choosing between CSE and a private attorney depends on your individual case. Investigate both options, and choose the one best for your particular needs.

How is child support set in North Carolina?

Child support is usually set by the N.C. Child Support Guidelines. The legislature adopted the Guidelines in 1994 to make child support more consistent and predictable.

In most cases, child support is calculated on a child support worksheet. The idea is that each parent contributes to child support in proportion to his/her share of the combined gross incomes. The worksheet and calculations take into account several factors:

  • Each party’s gross (before tax) income. Gross income is used because parties can manipulate some deductions to reduce their net.
  • Each party’s legal obligation to support other children.
  • The children’s living arrangements. A different worksheet is used for primary physical custody, joint/shared legal custody, and arrangements where one child lives with one parent and another child lives with the other parent.
  • The chart “lookup” number, which is described below.
  • Children’s health insurance premiums and work-related day care expenses.
  • Extraordinary expenses, as described below.

A legislative study commission determined how much parents in different income groups spent on child-related expenses for a given number of children. The study commission included both children’s individual expenses (like clothing and school supplies) and a share of fixed household expenses (like rent and vehicle expense). That “lookup” number for each income group is in a chart, with entries for one child, two children, etc.

Certain other costs are added to the lookup number, such as the children’s portion of health insurance premiums and work-related day care expenses. Judges have discretion to add “extraordinary expenses”. These include expenses for the child’s benefit that are beyond the usual things child support covers. Examples may include a child’s unusually high medical expenses, orthodontic care, and summer camps.

We apply each party’s relative percentage of income to the total expenses, with modification for joint or split custody arrangements. If the child support payor pays for health insurance, day care or extraordinary expenses, then the child support payment is adjusted to prevent double payment.

Judges have discretion to deviate from the child support Guidelines in cases where fairness requires it, for example, if the parties’ incomes are above the Guidelines chart, or if one party artificially depressed his/her income.

Child support can be set by agreement or by court decision. Child support can be paid directly to the payee or through the Court (sometimes including wage garnishment). If payment is through the Court, the Court will assist in enforcement; if child support is delinquent, the Clerk of Court will bring contempt charges against the payor.

Help on child support cases can also come from a private attorney or (for parties due to receive child support) from the County’s Child Support Enforcement (CSE) Office. Because CSE is a government agency, it has some enforcement tools that private lawyers do not have, like intercepting tax refunds, and it has a sliding fee scale that is usually less expensive than private attorneys. By comparison, private attorneys often have smaller caseloads and can provide more personalized attention. Private attorneys handling other aspects of one’s family law case may be more convenient for the client. However, when child support is the only issue, or when saving money on fees is critical, the CSE office is an excellent alternative. Because CSE represents only payees, payors needing representation would need a private attorney. Private attorneys usually represent both payors and payees.

Annulments are Hard to Come By in North Carolina

The calls – they come in a few times a year – go something like this: “I met this person the other night. I thought it was love. We got married. We both decided it was a bad idea! Since we’ve only been married 2 days, can we get an annulment? I don’t want to have to wait a year to get a divorce when I’ve only been married 2 days.”

I usually have to give these callers bad news. Annulments are hard to come by in North Caroline. By statute, annulments are available if:

  1. You’ve married someone you are related to closer than first cousins or someone who is your double first cousin (imagine what that would do to your family tree!)
  2. One of the couple is under 16 and the other is over 16, unless there has been prior court approval or unless the young lady under 16 is pregnant;
  3. You’ve married someone who is already married (bigamy);
  4. One of the parties was legally incompetent, meaning that he or she has been or could be declared incompetent and in need of a guardian.

Most likely, the legislature didn’t want a “shortcut” to get out of marriages right away because they wanted marriage to be entered seriously. Legislators may have believed that having a rule that marriage cannot be undone easily would cause couples to reflect more before tying the knot (although that obviously hasn’t worked with the callers I’m writing about).

As you can see from the list, there is nothing in the statute allowing annulments simply because marriage has been very brief or has not yet been consummated. If you don’t fit one of the listed categories, under North Carolina law you and your spouse must be separated (out from under the same roof, and acting like you are separated) for one year before either party can file for divorce. Some other states allow divorce after shorter period of separation for residents of those states, but moving your residence would be necessary.

On a related question, North Carolina law does not recognize common law marriage. In North Carolina, a valid marriage occurs only after obtaining a marriage license and having the marriage performed by an authorized minister, or by a magistrate, or by the customs of any religious denomination or any recognized Indian tribe. Where common law marriage is recognized, like in South Carolina, couples are regarded as married if they have resided together as if they were husband and wife for some substantial period of time, but have never had a marriage license.

The N.C. legislature just repealed a very old law making it a crime for an unmarried man and woman to cohabit. Although district attorneys did not enforce that law, it recently cost a Pender County Sheriff’s Office Dispatcher her job, bringing the law to the legislature’s attention.

Since 1995, North Carolina has had a law making marriages between same gender persons not valid here, even if they were lawfully entered in another state. This statute was enacted shortly after Hawaii decided to allow same-gender marriages.

North Carolina allows persons under 18 to marry under some circumstances. Permission by a parent having sole or joint legal custody enables someone between 16 and 18 to marry; consent of both parents is not required. Persons between 14 and 16 can marry if the young woman is pregnant or has had a child, but only if a judge concludes it is in the best interest of the underage party or parties to marry.

Some of North Carolina’s laws about marriage are as old as the state itself, and some are quite new. Because society’s ideas about marriage change over the years, laws change too, although not always at the same pace.

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