Articles Posted in ClientVille

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The United States, as a whole, has only allowed same-sex marriage for just over two and a half years. It is law that same-sex couples have the right to marry in the United States of America, but there are some who still struggle with the question of what exactly that entails. Certainly, same-sex couples can be married now, but are they afforded the same rights as heteronormative marriages? My answer is yes; if same-sex couples can legally marry, they should not have some cheap imitation of it. The law should give them the equal rights to their heteronormative counterparts, including hospital visitation, joint taxes, inheritance, and all other areas of the law. However, there are those who see same-sex marriages as inherently different from heteronormative marriages, and as such, believe they should not be treated the same or offered the same services. One such service, which is still heavily fought over, is the adoption of children.

Our neighboring state, Georgia, has recently had this argument enflamed in the form of Senate Bill 130. The bill would have been a major update to the state’s adoption laws, of which had not been updated in such a manner in 27 years. The bill stalled, neither passing or failing, at the end of last year after a provision was added by their state Senate Judiciary Committee which would allow private adoption agencies, including those that receive public funds, to refuse to place children in homes based on familial, cultural, or religious reasons.

Champions of LGBT+ advocacy argue the provision would allow the private agencies to discriminate against LGBT+ homes and cite any number differences between the children and the potential families. Sponsors of the amendment adversely claim that the added language in the bill would give agencies the power to find what they deem to homes more aligned in the interests of the children. It’s not hard to see both sides of this argument, as there is some truth to both sides. Certainly, agencies should consider the best interests of children, but it is also possible that such a provision could allow agencies to push their private agendas of what they believe families should be like, discriminating against not just LGBT+ families, but any family they do not want to place children with for any familial, cultural, or religious reason, rather than seeking out fit homes for children. A private agency could refuse to place a child in the home of divorcees, single parents, families of different ethnicities than a child, and families of different religions than a child even if the prospective families have the means and desire to care for a child.

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Today is the birthday of Martin Luther King Jr., a figure who needs no introduction. Fifty-five years since his famous speech, we are continuing to move towards King’s dream of “a nation where [we] will not be judged by the colour of [our] skin but by the content of [our] character.”

It isn’t just the speech that makes King stand out, however. In addition to being a powerful speaker, King was a champion of nonviolent activism. Tactics such as sit-ins sought to capture the public’s attention and force them to be aware of the discrimination occurring in racially-segregated restaurants. One of the strengths of a non-violent approach is that any retaliatory action on the government’s part just makes the protestors easier to support – they appear as underdogs suffering under the iron fist of big brother. Perhaps the best summary of nonviolent activism is simply Marc Riboud’s photograph of an anti-war protestor offering a flower to a soldier.

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Marc Ribaud, “Jeune fille à la fleur (variante),” October 21, 1967.

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Tip #6 – Exercise boosts your mood. Go for a jog or bike ride when you feel overwhelmed.

Exercise isn’t just for getting in shape – it also can help you to regulate your mood better. When you exercise, your brain releases endorphins, which are chemicals that trigger pleasant feelings in the body and reduce sensations of pain. Endorphins also can help combat depression, anxiety, and stress – all things you may be struggling with after a divorce.

If you’re really exercise-averse, you can find ways to be active that aren’t traditional exercises. Go for a walk downtown, explore a natural park, or try out a dance class.

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We started our divorce recovery tip series to provide advice in an easily-digestible format, but sometimes we can’t say everything we want to in one image. This blog series will expand on our tips and provide some extra insight into the divorce recovery process.

Tip #1 – Take time each week to pamper yourself.

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After divorce, we don’t often feel great about ourselves. We may wonder why it happened, what we did wrong, or what’s wrong with us. And while we may know that there’s nothing wrong with us, knowing that doesn’t always make us feel better.

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By Carolyn J. Woodruff, North Carolina Family Law Specialist

It is a privilege in our society to be in a civil courtroom. Courtrooms are places of decorum and are necessary to our system of justice and our freedom. Without witnesses, a trial cannot go forward. Without trials, our freedoms suffer. It is simply part of being a citizen of this great United States.

How does a courtroom look?

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Dear Carolyn,

I believe I am the Father of a son, but the Mother is married to someone else.  I dated Mother while she and her husband were separated, but now they are back together.   We had sex during the time we were dating and the child was born 9 months later—perfect timing for the child to be mine. Mother and Mother’s husband will not let me see the child, and quite frankly, hide him from me.  I want to see my son.  What can I do?  I do not have any other children.

~ Bewildered Father

 

Dear Bewildered,

You have a chance for visitation, and here’s what you will need to do.  North Carolina has a very strong presumption that a child born of and during a marriage is the child of the Husband to the marriage.   You will have to file a lawsuit asking for visitation and asking that the presumption be overcome.

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Dear Carolyn,

I have a family member who is separated. Before the separation, this person purchased a house with the deed only in her name and the deed of trust in both names. How will the courts view this property for equitable distribution? My family member thinks that since the property is only in her name that the other party has no rights under equitable distribution. Can you explain the difference between Deed and Deed of Trust?

Thanks

 

Carolyn Answers:

This is a very interesting and quite technical question. So, thank you for writing.  I’ll start first with the definitions of deed and deed of trust.

A deed is the ownership or title documents; by analogy, your car title is a title document for a car like a deed is the title document to your home. Thus, the deed states who owns the home, and generally on the deed the owner is referred to as the grantee. This ownership document (deed) is registered at the Register of Deeds.

A deed of trust is the security for the debt or Promissory Note. When you buy a home or get an equity line on your home, you sign a Promissory Note to the lender. At the time of borrowing, you also sign a document called a deed of trust as security (a lien); if you do not pay the Promissory Note, the signatures on the deed of trust allow the lender to foreclose on the home and take the home away from you. If you examine the deed of trust, you will notice that the lender is the beneficiary of the deed of trust, and that there is a trustee. It is the trustee that forecloses if the Note is not paid. When the Note is completely paid, the lender is required to cancel the deed of trust on the public record at the Register of Deeds. We are one of about twenty states that use the “deed of trust” system.  The majority of states use a “mortgage” system.

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Dear Carolyn,

My wife and I have been married 20 years. Our child is graduating from high school this year, and we are miserable.  We own a home with lots of debt and we cannot afford to separate without selling our home first.  We both work, but there simply is not enough money to maintain two households without first selling the house.  Is there any way we can declare ourselves separated and maintain the same household until the house sells?   Why is the North Carolina waiting period for divorce a year?  I hear that one year is a long time as compared to other states.  Can we settle our property now?  We have retirement, cars and furniture, along with the house?

 

Carolyn Answers:

Generally, North Carolina requires 365 days of separation, with the intent of one spouse to live separate and apart forever, before a spouse may apply to the court for an absolute divorce. Separation in this state means, literally that the spouses, during separation, must have separate residences and essentially, conduct themselves as single for the entire 365 days. Isolated incidences of sexual intercourse, such as a weekend at the beach with an estranged spouse, do not start the 365 day period over.

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Dear Carolyn,

The ex-wife of my new husband is constantly calling my cell phone, following me in my car, and making faces at me at the children’s soccer game.  I get texts from her calling me names.  She even threatened to come to my work. I feel intimidated.  Can I get a 50B for domestic violence and harassment?

 

Carolyn Answers:

You may be able to get a 50-C, not a 50-B. A 50-B is a domestic violence protection order that can be obtained if you have certain types of relationships with the defendant.  Unfortunately, 50-Bs do not cover relationship problems between a former wife and a new wife.  Typically, 50-B relationships are romantic relationships or parent-child type relationships.

You are eligible to get a 50-C against your husband’s ex-wife.  Essentially, a victim (you) under the 50-C statute:  “Victim.—A person against whom an act of unlawful conduct has been committed by another person not involved in a personal relationship with the person as defined in G.S. 50B-1(b).”  G.S. 50C-1(8).

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By Carolyn J. Woodruff, North Carolina Family Law Specialist

Winston Salem, North Carolina: Malecek v. Williams (2017)

Derek Williams is a Forsyth County doctor who had an affair apparently, or at least allegedly, with his nurse. Playing doctor-nurse games got them in trouble with the nurse’s husband, Marc Malecek. The nurse’s then-husband Marc sued Derek for alienation of affection and criminal conversation.

What is alienation of affection? This heart balm tort is something like an automobile accident where a marriage is rear-ended. This alienation of affection requires a spouse to prove that he or she had a genuine marital relationship and that marriage relationship was interfered with by a third party paramour, causing damages. What is criminal conversation? That is simpler. That is sex with someone’s spouse creating damages. Frequently the damages might be one dollar, which is required to reward if sex is found with someone else’s spouse. Of course, in North Carolina damages for alienation of affection and criminal conversation has been as much as $30 million.

Interestingly enough, Derek Williams was sued by Marc Malecek in May of 2016. The Honorable Todd Burke dismissed the lawsuit indicating that alienation of affection and criminal conversation were unconstitutional. There had been several other cases wherein judges had found or not found alienation of affection and criminal conversation to be unconstitutional.

For now, the North Carolina Court of Appeals has spoken on the constitutionality of alienation of affection and criminal conversation. These heart balm torts are constitutional, according to Court of Appeals Judge Richard Deitz. Continue reading →