North Carolina

North Carolina Family Law Basics (7 Part Series) Part 7 Final Divorce Decree

We have reached the final part of my seven part series regarding the basics of North Carolina Family Law.  If you need to get caught up to speed check out our archives. Today we are coincidentally going to talk about obtaining the final divorce decree.  North Carolina divorce is governed by NCGS 50-6 and has essentially two elements.  The first element is that at least one party must be intentionally separate and apart from the other party for at least a year and a day.  I'm aware the statute says one year, but the extra day is necessary because you don't want to file it on day 365.  Safer to file the divorce complaint on day 366.  The extra day won't kill you, but a Judge may kill your divorce claim if you file too early.  The second element is that at least one party be a resident of North Carolina six months or more prior to filing suit.  If the Plaintiff is not a NC resident then the suit needs to be filed in the county in which the Defendant resides.   

CAN WE LIVE IN SEPARATE PARTS OF THE HOUSE AND BE CONSIDERED SEPARATE?

This is a very common question and the simple answer is no, you will not be considered separated if you continue to share the same roof.  To be considered separate, at least one of the spouses must intentionally cease cohabitation and actually be physically separate from the other spouse for that year and a day time period we talked about earlier.  Only one of the spouses have the intention to cease cohabitation (and actually done so) for the separation to be valid.

WHAT IF WE GET "BACK TOGETHER" FOR A NIGHT OR TWO?

Resumption of marital relations (voluntary renewal of the husband and wife relationship) can stop the separation process and force a new separation clock to start ticking.  However, infrequent and isolated incidents of sexual conduct between the parties will not mean that the parties have resumed marital relations.  

PROOF OF SEPARATION DATE

Assertion of a date of separation by the complaining party on a divorce complaint with a verification page will be the Plaintiff's (complaining party) proof that the parties separated on the date indicated.  The spouse that is the Defendant can dispute the date if they believe the separation actually occurred later and they can provide some sort of physical proof if they have it.  This is pretty rare, but I tell my clients to be honest when providing facts in any court document.  I do that because a verification page is going to be notarized and the party signing the verification page is essentially attesting to the court that what they are saying is true and correct to the best of your knowledge.  So don't lie. Lying on a court document will be perpetrating a fraud upon the Court. Give the date of separation as you best recollect it.

I'VE MET THE SEPARATION REQUIREMENT AND RESIDENCY REQUIREMENT, NOW WHAT?

Great question.  So to institute any lawsuit in North Carolina there needs to be a summons and complaint filed with the Court then served on the Defendant.  A summons gives the Defendant information about what county and division the action is taking place (Ex. Wake County District Court) and who the other party is along with their mailing address and attorney's information, if applicable.  The absolute divorce complaint will state the facts relevant to the two main elements, which are year and a day separation timeframe and residency requirements along with what the Plaintiff is seeking as an outcome (prayer for relief).

The next thing you must do after filing is get service on the Defendant under Rule 4 of the North Carolina Rules of Civil Procedure.  Service is usually completed by Sheriff or by Certified Mail, but the rule allows for others (like process servers) to effectuate service on a Defendant.

Once the Defendant is served they will have thirty (30) days to file an answer or responsive pleading with the court (you can ask the court for a 30 day extension if need be).  If no answer or responsive pleading is filed, then the Plaintiff can file a Motion for Summary Judgment under Rule 56 or file Motion for Default Judgment under Rule 55. Both can result in an Absolute Divorce being entered by the Court.

DOES THE FACT THAT I OBTAINED A FINAL DIVORCE DECREE OR JUDGMENT EFFECT ANY OTHER AREAS OF FAMILY LAW?

That is a big affirmative.  However, it only pertains to Equitable Distribution, Post-Separation Support and Alimony.  If an ED, PSS or Alimony claim has not been filed by one party and a final divorce decree/judgment is entered, then both parties are kept from asserting any of those claims.  That's why it is very important to contact an attorney once you are served with a divorce complaint.  Once that final divorce decree is entered then your claims for ED (property distribution), Post-Separation Support and Alimony are gone if nothing is pending for those matters.

CAN I GET MY NAME BACK?

Again, a big affirmative on this as well.  If a Plaintiff wishes to return to their maiden name the Plaintiff should put that request in the facts and prayer for relief.  If the Defendant wants to resume their maiden name, then I would advise on filing an answer to the complaint specifying that request.  If the divorce with a name change provision is granted by the court, then all that is left is filing this form.  Once you have the proper court documents the real fun begins in changing your name.  That's right, you get to go through the process with the DMV, North Carolina Department or Transportation and the Social Security Administration.  Luckily for you, the information on how to do that can be found here.

On that note, this will conclude the North Carolina Family Law Basics (7 Part Series).  

Don't fret though as I will be updating this blog weekly with more information regarding North Carolina Family Laws.

 

 

A Murder of Drones: NC Gov. McCrory Signs New Drone Bill into Law

We've all seen the Audi commercial where a swarm of drones attacks a group of professionals leaving work who are then only saved because of their new luxury Audi (jealous).   Although this image of a swarm of drones (similar to a murder of crows) is merely a work of advertising art, mainstream commercial use of drones is now a much closer reality to North Carolinians thanks to Governor McCrory's signing of S.L. 2015-232.  

Keep in mind that commercial use of drones, also called Unmanned Aircraft Systems (UAS's), is regulated by the FAA when used in FAA airspace (essentially anytime you are outside and in the air).  Currently, the FAA has not approved commercial drone use in its airspace, unless you get a Special Airworthiness Certificate or an exemption (neither of which are easy and both of which can take more than a year to process).  As of this year, the FAA has circulated Proposed Rules for small UAS's but nothing has become official.  However, many states, such as NC, are starting to think ahead and develop their own body of laws for when the feds get it figured out.  If this is all news to you, I recommend you start here.

Here is what you need to know about the newest NC drone legislation:

Certain State Agencies may be authorized to operate UAS's and may be permitted to use and/or disclose personal information acquired through the operation of a UAS.  

**Cue Fourth Amendment concerns about privacy.**   The new NC law gives the NC Chief Information Officer (CIO) the power to approve or disapprove a state agency's use of UAS's and the power to allow the disclosure of personal information gathered by this use (a.k.a. a lot of power for an unelected official).  Who are some "state agencies," you may ask?  DPS, DOT, and DENR, just to name a few.  This can obviously spark some concerns about privacy but may also be very beneficial to our state's economic development (for example, allowing the DOT to use drones to improve roadways and traffic patterns).  Everything has its #pros and #cons.

UAS's can only be operated by a state agency if the operator has passed a state-required Knowledge Test (unless the Knowledge Test has not been implemented).

The legislation also discusses the "Knowledge Test" requirement and gives some hints about what will be included in said Knowledge Test.  Because this test has not been implemented or developed to date, the CIO can essentially waive this requirement for state agencies in the interim.  The law also permits a private training facility to administer the test.

Commercial use of UAS's will require an NC Permit.

This is the bulk of the new legislation and the part worthy of review.  The Permit requirement will be specific to NC and would be in addition to any FAA-required permits.  In order to get a permit, you must be at least 17 years old, hold a valid driver's license in any U.S. state/territory (key word: valid), pass the NC Knowledge Test, and satisfy all federal regulations.  

When can I apply for a Permit? IDK.

The only down side to all this news is that the permit process and application process are currently in development and do not really exist at this time... Nor have the feds fleshed out the FAA requirements...  In other words, this is all very exciting but don't expect any movement for at least a year if not two or three.   However, if you are interested in using drones for a commercial purpose, now is a good time to start preparing yourself and your company for regulatory challenges and following legislative developments carefully.  You may also want to start talking to your friends in insurance because finding UAS insurance is pretty much impossible at this time and very much needed to make commercial UAS use a safe and viable option. 

Alas, if you want to know more about commercial drone use or would like to talk about really cool things drones can do, feel free to reach out