Family Law Questions and Answers

Interactions with clients that have family law issues produce issues and questions that frequently arise.  In this installment of our family law blog, we are going to discuss some of the more common questions that I have received over the years regarding family law.  Questions asked by multiple people, independent of each other, are asked for a reason.  That reason is that there is a lot of misinformation out there.  Let's clear some things up.

IS THERE SUCH A THING AS COMMON LAW MARRIAGE IN NORTH CAROLINA?

Before I get to the crux of this question, allow me to briefly explain what is common law marriage in the first place.  The elements required to be met in order to create a common law marriage vary state to state, but typically there are at least two requirements that have to be met in order for parties to be joined in matrimony via common law marriage.  Those two requirements are cohabitation (length of time depends on the state) and holding each other out to be man and wife.  The second requirement, holding each other out to be man and wife, means how the couple has held their relationship out to the world.  A couple examples are filing joint tax returns, spouse taking the other spouse's name, introducing oneself, and continuing to express to others, that you and the other person are married.  There may be other requirements, and/or examples, depending on the state.  Right now, there are a handful of states that have common law marriage.  They are New Hampshire (for inheritance purposes only), Colorado, Oklahoma, D.C. (I know it's not a state, but people still live there), Rhode Island, Iowa, South Carolina, Kansas, Texas, Montana, and Utah.  Note:  Alabama passed legislation in 2016 doing away with common law marriage after that year.

As you've probably noticed above, North Carolina does not have, and has never had, common law marriage.  North Carolina only has statutory marriage under North Carolina General Statute Chapter 51.  

WHAT IS ABANDONMENT IN FAMILY LAW?

Abandonment in chapter 50 of the North Carolina General Statutes is relevant in family law matters, typically in divorce, post-separation support, alimony, and child support actions. Abandonment is partially defined by case law as "[o]ne spouse abandons the other when he or she brings cohabitation to an end without justification, without consent of other spouse, and without intent of renewing cohabitation"  Sorey v. Sorey.  Sorey is not the only case used to establish abandonment by one spouse against another. 

There are four things a spouse must show to establish abandonment.  First, the accused spouse must have intentionally stopped living with the complaining spouse (person who is claiming abandonment).  This can be done by moving to a separate residence or a separate part of the home, or by constructive abandonment, which is when the departing spouse leaves as a result of the complaining spouse's behavior.  Think physical or mental abuse, drinking/drug use, etc.  Second, the spouse that is accused of abandonment does not intend to restart cohabitation.  Third, that the spouse who is complaining did not consent to the separation.  Fourth and finally, the spouse who is complaining cannot have provoked or caused the accused spouse's withdrawal from the complaining spouse.   

AT WHAT AGE CAN YOU LEGALLY GET MARRIED IN NORTH CAROLINA?

With the exceptions laid out below, a person can legally marry in North Carolina once they reach the age of eighteen under North Carolina General Statute 51-2.

Exceptions the the requirement that parties to a marriage must be eighteen years of age are:

  1. If persons are over 16 years of age, but under 18 years of age, they may marry if there is written consent to the marriage by a parent having full or joint legal custody of the underage party, or by a person, agency, or institution having legal custody or serving as a guardian of the underage party.  This does not include emancipated minors as they are adults in the eyes of North Carolina law.
  2. Persons over 14 years of age and under 16 years of age may marry as provided in G.S. 51-2.1.  Basically, if a child over 14 and under 16 is pregnant or has a child, they may marry the putative father/mother.
  3. Anyone under 14 years of age cannot get married in North Carolina.  

AT WHAT AGE CAN A CHILD BE LEFT HOME ALONE?

Short answer is any child 8 years of age or older; however, don't forget about the possible child custody implications in leaving an older child home alone.  Better yet, maybe you'd like to take a look at a prior blog post on the subject that can be found here.  

These are the most common questions I get regarding family law.  If you have any questions yourself that were not answered here, please reach out to me at 919-694-0001 to schedule an appointment or reach me at info@feltonbanks.com.

*Nothing in this blog post establishes an attorney-client relationship or should be construed as legal advice.