North Carolina code § 50‑7. Grounds for
divorce from bed and board.
The court may grant divorces from bed and board on application of the party injured, made as by law provided, in the following
cases if either party:
(1) Abandons his or her family.
(2) Maliciously
turns the other out of doors.
(3) By cruel or barbarous treatment endangers the
life of the other. In addition, the court may grant the victim of such treatment the remedies available under North
Carolina statutes 50B‑1,
et seq.
(4) Offers such indignities to the person of the other as to render his
or her condition intolerable and life burdensome.
(5) Becomes an excessive user
of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome.
(6) Commits
adultery.
NC code § 50‑6. Divorce after separation of one year on application of either party.
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Marriages may be dissolved and the parties thereto divorced from
the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart
for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months.
A divorce under this section shall not be barred to either party by any defense or plea based upon any provision of North
Carolina statutes 50‑7, a plea of res judicata, or a plea of recrimination. Notwithstanding
the provisions of North
Carolina statutes 50‑11, or of the common law, a divorce under this section shall not affect the rights of a dependent
spouse with respect to alimony which have been asserted in the action or any other pending action.
Whether there has been a resumption of marital relations during the period of separation shall be determined pursuant
to North
Carolina statutes 52‑10.2. Isolated incidents of sexual intercourse between the parties shall not toll the statutory period
required for divorce predicated on separation of one year.
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North Carolina code § 50‑13.1. Action
or proceeding for custody of minor child.
(a) Any parent, relative, or other person, agency, organization or institution
claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child, as hereinafter
provided. Any person whose actions resulted in a conviction under North
Carolina statute 14‑27.2 or NC statute 14‑27.3 and the conception
of the minor child may not claim the right to custody of that minor child. Unless a contrary intent is clear, the word 'custody'
shall be deemed to include custody or visitation or both.
(a1) Notwithstanding any other provision
of law, any person instituting an action or proceeding for custody ex parte who has been convicted of a sexually violent
offense as defined in North
Carolina statutes 14‑208.6(5) shall disclose
the conviction in the pleadings.
(b) Whenever it appears to the court, from the
pleadings or otherwise, that an action involves a contested issue as to the custody or visitation of a minor child, the matter,
where there is a program established pursuant to North
Carolina statutes 7A‑494, shall be set for mediation of the unresolved issues as
to custody and visitation before or concurrent with the setting of the matter for hearing unless the court waives mediation
pursuant to subsection (c). Issues that arise in motions for contempt or for modifications as well as in other pleadings
shall be set for mediation unless mediation is waived by the court. Alimony, child support, and other economic issues may
not be referred for mediation pursuant to this section. The purposes of mediation under this section include the pursuit
of the following goals:
(1) To reduce any acrimony that exists between the parties to a dispute involving
custody or visitation of a minor child;
(2) The development of custody and visitation
agreements that are in the child's best interest;
(3) To provide the parties with informed choices and, where possible,
to give the parties the responsibility for making decisions about child custody and visitation;
(4) To
provide a structured, confidential, non adversarial setting that will facilitate the cooperative resolution of custody and
visitation disputes and minimize the stress and anxiety to which the parties, and especially the child, are subjected; and
(5) To reduce the relitigation
of custody and visitation disputes.
(c) For
good cause, on the motion of either party or on the court's own motion, the court may waive the mandatory setting under Article
39A of Chapter 7A of the General Statutes of a contested custody or visitation matter for mediation. Good cause may include,
but is not limited to, the
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following: a showing of undue hardship to a party; an agreement
between the parties for voluntary mediation, subject to court approval; allegations of abuse or neglect of the minor child;
allegations of alcoholism, drug abuse, or domestic violence between the parents in common; or allegations of severe psychological,
psychiatric, or emotional problems. A showing by either party that the party resides more than fifty miles from the court
shall be considered good cause.
(d) Either party may move to have the mediation
proceedings dismissed and the action heard in court due to the mediator's bias, undue familiarity with a party, or other
prejudicial ground.
(e) Mediation proceeding shall be held in private and shall
be confidential. Except as provided in this Article, all verbal or written communications from either or both parties to
the mediator or between the parties in the presence of the mediator made in a proceeding pursuant to this section are absolutely
privileged and inadmissible in court. The mediator may assess the needs and interests of the child, and may interview the
child or others who are not parties to the proceedings when he or she thinks appropriate.
(f) Neither
the mediator nor any party or other person involved in mediation sessions under this section shall be competent to testify
to communications made during or in furtherance of such mediation sessions; provided, there is no privilege as to communications
made in furtherance of a crime or fraud. Nothing in this subsection shall be construed as permitting an individual to obtain
immunity from prosecution for criminal conduct or as excusing an individual from the reporting requirements of Article 3
of Chapter 7B of the General Statutes or North
Carolina statutes 108A‑102.
(g) Any agreement
reached by the parties as a result of the mediation shall be reduced to writing, signed by each party, and submitted to the
court as soon as practicable. Unless the court finds good reason not to, it shall incorporate the agreement in a court order
and it shall become enforceable as a court order. If some or all of the issues as to custody or visitation are not resolved
by mediation, the mediator shall report that fact to the court.
(h) If an agreement
that results from mediation and is incorporated into a court order is referred to as a 'parenting agreement' or called by
some similar name, it shall nevertheless be deemed to be a custody order or child custody determination for purposes of Chapter
50A of the General Statutes, North
Carolina statutes 14‑320.1, NC statutes 110‑139.1,
or other places where those terms appear.
(i) If the child whose custody is
the subject of an action under this Chapter also is the subject of a juvenile abuse, neglect, or dependency proceeding pursuant
to Subchapter 1 of Chapter 7B of the General Statutes, then the custody action under this Chapter is stayed as provided in
North
Carolina statutes 7B‑200.
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North Carolina code § 50‑13.4. Action
for support of minor child.
(a) Any parent, or any person, agency, organization or institution having custody
of a minor child, or bringing an action or proceeding for the custody of such child, or a minor child by his guardian may
institute an action for the support of such child as hereinafter provided.
(b) In
the absence of pleading and proof that the circumstances otherwise warrant, the father and mother shall be primarily liable
for the support of a minor child. In the absence of pleading and proof that the circumstances otherwise warrant, parents
of a minor, unemancipated child who is the custodial or noncustodial parent of a child shall share this primary liability
for their grandchild's support with the minor parent, the court determining the proper share, until the minor parent reaches
the age of 18 or becomes emancipated. If both the parents of the child requiring support were unemancipated minors at the
time of the child's conception, the parents of both minor parents share primary liability for their grandchild's support
until both minor parents reach the age of 18 or become emancipated. If only one parent of the child requiring support was
an unemancipated minor at the time of the child's conception, the parents of both parents are liable for any arrearages in
child support owed by the adult or emancipated parent until the other parent reaches the age of 18 or becomes emancipated.
In the absence of pleading and proof that the circumstances otherwise warrant, any other person, agency, organization or
institution standing in loco parentis shall be secondarily liable for such support. Such other circumstances may include,
but shall not be limited to, the relative ability of all the above‑mentioned
parties to provide support or the inability of one or more of them to provide support, and the needs and estate of the child.
The judge may enter an order requiring any one or more of the above‑mentioned parties to provide for the support of
the child as may be appropriate in the particular case, and if appropriate the court may authorize the application of any
separate estate of the child to his support. However, the judge may not order support to be paid by a person who is not the
child's parent or an agency, organization or institution standing in loco parentis absent evidence and a finding that such
person, agency, organization or institution has voluntarily assumed the obligation of support in writing. The preceding sentence
shall not be construed to prevent any court from ordering the support of a child by an agency of the State or county which
agency may be responsible under law for such support.
The judge may order responsible parents in a IV‑D establishment case to perform a job search, if the responsible
parent is not incapacitated. This includes IV‑D cases in which the responsible parent is a noncustodial mother or a
noncustodial father whose affidavit of parentage has been filed with the court or when paternity is not at issue for the
child. The court may further order the responsible parent to participate in work activities, as defined in 42 U.S.C. § 607,
as the court deems appropriate.
(c) Payments ordered for the support of a minor
child shall be in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having
due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care
and homemaker contributions of each party, and other facts of the particular case. Payments ordered for the support of a
minor child shall be on a monthly basis, due and payable on the first day of each month. The requirement that orders be established
on a monthly basis does not affect the availability of garnishment of disposable earnings based on an obligor's pay period.
The court shall determine the amount of child support payments by applying the presumptive guidelines established pursuant
to subsection (c1) of this section. However, upon request of any party, the Court shall hear evidence, and from the evidence,
find the facts relating to the reasonable needs of the child for support and the relative ability of each parent to provide
support. If, after considering the evidence, the Court finds by the greater weight of the evidence that the application of
the guidelines would not meet or would exceed the reasonable needs of the child considering the relative ability of each
parent to provide support or would be otherwise unjust or inappropriate the Court may vary from the guidelines. If the court
orders an amount other than the amount determined by application of the presumptive guidelines, the court shall make findings
of fact as to the criteria that justify varying from the guidelines and the basis for the amount ordered.
Payments ordered for the support of a child shall terminate when the child reaches the age of 18 except:
(1) If
the child is otherwise emancipated, payments shall terminate at that time;
(2) If
the child is still in primary or secondary school when the child reaches age 18, support payments shall continue until the
child graduates, otherwise ceases to attend school on a regular basis, fails to make satisfactory academic progress towards
graduation, or reaches age 20, whichever comes first, unless the court in its discretion orders that payments cease at age
18 or prior to high school graduation.
In the case of graduation, or attaining age 20, payments shall terminate without order by the court, subject to the right
of the party receiving support to show, upon motion and with notice to the opposing party, that the child has not graduated
or attained the age of 20.
If an arrearage for child support or fees due exists at the time that a child support obligation terminates, payments
shall continue in the same total amount that was due under the terms of the previous court order or income withholding in
effect at the time of the support obligation. The total amount of these payments is to be applied to the arrearage until
all arrearages and fees are satisfied or until further order of the court.
(c1) Effective July
1, 1990, the Conference of Chief District Judges shall prescribe uniform statewide presumptive guidelines for the computation
of child support obligations of each parent as provided in Chapter 50 or elsewhere in the General Statutes and shall develop
criteria for determining when, in a particular case, application of the guidelines would be unjust or inappropriate. Prior
to May 1, 1990 these guidelines and criteria shall be reported to the General Assembly by the Administrative Office of the
Courts by delivering copies to the President Pro Tempore of the Senate and the Speaker of the House of Representatives. The
purpose of the guidelines and criteria shall be to ensure that payments ordered for the support of a minor child are in such
amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates,
earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions
of each party, and other facts of the particular case. The guidelines shall include a procedure for setting child support,
if any, in a joint or shared custody arrangement which shall reflect the other statutory requirements herein.
Periodically, but at least once every four years, the Conference of Chief District Judges shall review the guidelines
to determine whether their application results in appropriate child support award amounts. The Conference may modify the
guidelines accordingly. The Conference shall give the Department of Health and Human Services, the Administrative Office
of the Courts, and the general public an opportunity to provide the
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Conference with information relevant to the development and review
of the guidelines. Any modifications of the guidelines or criteria shall be reported to the General Assembly by the Administrative
Office of the Courts before they become effective by delivering copies to the President Pro Tempore of the Senate and the
Speaker of the House of Representatives. The guidelines, when adopted or modified, shall be provided to the Department of
Health and Human Services and the Administrative Office of the Courts, which shall disseminate them to the public through
local IV‑D offices, clerks of court, and the media.
Until July 1, 1990, the advisory guidelines adopted by the Conference of Chief District Judges pursuant to this subsection
as formerly written shall operate as presumptive guidelines and the factors adopted by the Conference of Chief District Judges
pursuant to this subsection as formerly written shall constitute criteria for varying from the amount of support determined
by the guidelines.
(d) In non‑IV‑D
cases, payments for the support of a minor child shall be ordered to be paid to the person having custody of the child or
any other proper person, agency, organization or institution, or to the State Child Support Collection and Disbursement Unit,
for the benefit of the child. In IV‑D cases, payments for the support of a minor child shall be ordered to be paid
to the State Child Support Collection and Disbursement Unit for the benefit of the child.
(d1) For
child support orders initially entered on or after January 1, 1994, the immediate income withholding provisions of North
Carolina statutes 110‑136.5(c1)
shall apply.
(e) Payment for the support of a minor child shall be paid by lump
sum payment, periodic payments, or by transfer of title or possession of personal property of any interest therein, or a
security interest in or possession of real property, as the court may order. The court may order the transfer of title to
real property solely owned by the obligor in payment of arrearages of child support so long as the net value of the interest
in the property being transferred does not exceed the amount of the arrearage being satisfied. In every case in which payment
for the support of a minor child is ordered and alimony or post separation support is also ordered, the order shall separately
state and identify each allowance.
(e1) In IV‑D cases, the order for child support shall
provide that the clerk shall transfer the case to another jurisdiction in this State if the IV‑D agency requests the
transfer on the basis that the obligor, the custodian of the child, and the child do not reside in the jurisdiction in which
the order was issued. The IV‑D agency shall provide notice of the transfer to the obligor by delivery of written notice
in accordance with the notice requirements of Chapter 1A‑1, Rule 5(b) of the Rules of Civil Procedure. The clerk shall
transfer the case to the jurisdiction requested by the IV‑D agency, which shall be a jurisdiction in which the obligor,
the custodian of the child, or the child resides. Nothing in this subsection shall be construed to prevent a party from contesting
the transfer.
(f) Remedies for enforcement of support of minor children shall
be available as herein provided.
(1) The court may require the person ordered to
make payments for the support of a minor child to secure the same by means of a bond, mortgage or deed of trust, or any other
means ordinarily used to secure an obligation to pay money or transfer property, or by requiring the execution of an assignment
of wages, salary or other income due or to become due.
(2) If the court requires
the transfer of real or personal property or an interest therein as provided in subsection (e) as a part of an order for
payment of support for a minor child, or for the securing thereof, the court may also enter an order which shall transfer
title as provided in G.S. 1A‑1, Rule 70 and North
Carolina statutes 1‑228.
(3) The remedy
of arrest and bail, as provided in Article 34 of Chapter 1 of the General Statutes, shall be available in actions for child‑support
payments as in other cases.
(4) The remedies of attachment and garnishment, as provided
in Article 35 of Chapter 1 of the General Statutes, shall be available in an action for child‑support payments as in
other cases, and for such purposes the child or person bringing an action for child support shall be deemed a creditor of
the defendant. Additionally, in accordance with the provisions of North
Carolina statutes 110‑136, a continuing wage garnishment proceeding
for wages due or to become due may be instituted by motion in the original child support proceeding or by independent action
through the filing of a petition.
(5) The remedy of injunction, as provided in Article
37 of Chapter 1 of the General Statutes and North
Carolina statutes 1A‑1, Rule 65, shall be available in actions for child support as
in other cases.
(6) Receivers, as provided in Article 38 of Chapter 1 of the General
Statutes, may be appointed in action for child support as in other cases.
(7) A
minor child or other person for whose benefit an order for the payment of child support has been entered shall be a creditor
within the meaning of Article 3A of Chapter 39 of the General Statutes pertaining to fraudulent conveyances.
(8) Except
as provided in Article 15 of Chapter 44 of the General Statutes, a judgment for child support shall not be a lien against
real property unless the judgment expressly so provides, sets out the amount of the lien in a sum certain, and adequately
describes the real property affected; but past due periodic payments may by motion in the cause or by a separate action be
reduced to judgment which shall be a lien as other judgments and may include provisions for periodic payments.
(9) An
order for the periodic payments of child support or a child support judgment that provides for periodic payments is enforceable
by proceedings for civil contempt, and disobedience may be punished by proceedings for criminal contempt, as provided in
Chapter 5A of the General Statutes.
Notwithstanding the provisions of North
Carolina statutes 1‑294, an order for the payment of child
support which has been appealed to the appellate division is enforceable in the trial court by proceedings for civil contempt
during the pendency of the appeal. Upon motion of an aggrieved party, the court of the appellate division in which the appeal
is pending may stay any order for civil contempt entered for child support until the appeal is decided, if justice requires.
(10) The
remedies provided by Chapter 1 of the General Statutes, Article 28, Execution; Article 29B, Execution Sales; and Article
31, Supplemental Proceedings, shall be available for the enforcement of judgments for child support as in other cases, but
amounts so payable shall not constitute a debt as to which property is exempt from execution as provided in Article 16 of
Chapter 1C of the General Statutes.
(11) The specific enumeration of remedies in this section
shall not constitute a bar to remedies otherwise available.
(g) An individual who
brings an action or motion in the cause for the support of a minor child, and the individual who defends the action, shall
provide to the clerk of the court in which the action is brought or the order is issued, the individual's social security
number.
(h) Child support orders initially entered or modified on and after October
1, 1998, shall contain the name of each of the parties, the date of birth of each party, and the court docket number. The
Administrative Office of the Courts shall transmit to the Department of Health and Human Services, Child Support Enforcement
Program, on a timely basis, the information required to be included on orders under this subsection and the social security
number of each party as required under subsection (g) of this section.
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North Carolina code § 50‑16.7. How
alimony and post separation support paid; enforcement of decree.
(a) Alimony or post separation support shall be paid by lump sum payment, periodic
payments, income withholding, or by transfer of title or possession of personal property or any interest therein, or a security
interest in or possession of real property, as the court may order. The court may order the transfer of title to real property
solely owned by the obligor in payment of lump‑sum payments of alimony or post separation support or in payment of
arrearages of alimony or post separation support so long as the net value of the interest in the property being transferred
does not exceed the amount of the arrearage being satisfied. In every case in which either alimony or post separation support
is allowed and provision is also made for support of minor children, the order shall separately state and identify each allowance.
(b) The
court may require the supporting spouse to secure the payment of alimony or post separation support so ordered by means of
a bond, mortgage, or deed of trust, or any other means ordinarily used to secure an obligation to pay money or transfer property,
or by requiring the supporting spouse to execute an assignment of wages, salary, or other income due or to become due.
(c) If
the court requires the transfer of real or personal property or an interest therein as a part of an order for alimony or
post separation support as provided in subsection (a) or for the securing thereof, the court may also enter an order which
shall transfer title, as provided in North
Carolina statutes 1A‑1, Rule 70 and North
Carolina statutes 1‑228.
(d) The
remedy of arrest and bail, as provided in Article 34 of Chapter 1 of the General Statutes, shall be available in actions
for alimony or post separation support as in other cases.
(e) The remedies of attachment
and garnishment, as provided in Article 35 of Chapter 1 and Article 9 of Chapter 110 of the General Statutes, shall be available
in actions for alimony or post separation support as in other cases, and for such purposes the dependent spouse shall be
deemed a creditor of the supporting spouse.
(f) The remedy of injunction, as provided
in Article 37 of Chapter 1 of the General Statutes and North
Carolina statutes 1A‑1, Rule 65, shall be available in actions
for alimony or post separation support as in other cases.
(g) Receivers, as provided in Article 38 of Chapter 1 of the General
Statutes, may be appointed in actions for alimony or post separation support as in other cases.
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(h) A dependent spouse
for whose benefit an order for the payment of alimony or post separation support has been entered shall be a creditor within
the meaning of Article 3A of Chapter 39 of the General Statutes pertaining to fraudulent conveyances.
(i) A
judgment for alimony or post separation support obtained in an action therefore shall not be a lien against real property
unless the judgment expressly so provides, sets out the amount of the lien in a sum certain, and adequately describes the
real property affected; but past‑due periodic payments may by motion
in the cause or by a separate action be reduced to judgment which shall be a lien as other judgments.
(j) Any
order for the payment of alimony or post separation support is enforceable by proceedings for civil contempt, and its disobedience
may be punished by proceedings for criminal contempt, as provided in Chapter 5A of the General Statutes.
Notwithstanding the provisions of NC statutes 1‑294 or NC statutes 1‑289, an order for the periodic
payment of alimony that has been appealed to the appellate division is enforceable in the trial court by proceedings for
civil contempt during the pendency of the appeal. Upon motion of an aggrieved party, the court of the appellate division
in which the appeal is pending may stay any order for civil contempt entered for alimony until the appeal is decided if justice
requires.
(k) The
remedies provided by Chapter 1 of the General Statutes Article 28, Execution; Article 29B, Execution Sales; and Article 31,
Supplemental Proceedings, shall be available for the enforcement of judgments for alimony and post separation support as
in other cases, but amounts so payable shall not constitute a debt as to which property is exempt from execution as provided
in Article 16 of Chapter 1C of the General Statutes.
(l) The specific enumeration
of remedies in this section shall not constitute a bar to remedies otherwise available.
(l1) The
dependent spouse may apply to the court for an order of income withholding for current or delinquent payments of alimony
or post separation support or for any portion of the payments. If the court orders income withholding, a notice of obligation
to withhold shall be served on the payor as required by North
Carolina statutes 1A‑1,
Rule 4, Rules of Civil Procedure. Copies of the notice shall be filed with the clerk of court and served upon the supporting
spouse by first‑class mail.
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North Carolina code § 50‑20. Distribution
by court of marital and divisible property.
(a) Upon application of a party, the court shall determine what is the marital
property and divisible property and shall provide for an equitable distribution of the marital property and divisible property
between the parties in accordance with the provisions of this section.
(b) For purposes
of this section:
(1) 'Marital property' means all real and personal property acquired
by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties,
and presently owned, except property determined to be separate property or divisible property in accordance with subdivision
(2) or (4) of this subsection. Marital property includes all vested and non vested pension, retirement, and other deferred
compensation rights, and vested and non vested military pensions eligible under the federal Uniformed Services Former Spouses'
Protection Act. It is presumed that all property acquired after the date of marriage and before the date of separation is
marital property except property which is separate property under subdivision (2) of this subsection. This presumption may
be rebutted by the greater weight of the evidence.
(2) 'Separate property' means
all real and personal property acquired by a spouse before marriage or acquired by a spouse by bequest, devise, descent,
or gift during the course of the marriage. However, property acquired by gift from the other spouse during the course of
the marriage shall be considered separate property only if such an intention is stated in the conveyance. Property acquired
in exchange for separate property shall remain separate property regardless of whether the title is in the name of the husband
or wife or both and shall not be considered to be marital property unless a contrary intention is expressly stated in the
conveyance. The increase in value of separate property and the income derived from separate property shall be considered
separate property. All professional licenses and business licenses which would terminate on transfer shall be considered
separate property.
(3) 'Distributive award' means payments that are payable either
in a lump sum or over a period of time in fixed amounts, but shall not include alimony payments or other similar payments
for support and maintenance which are treated as ordinary income to the recipient under the Internal Revenue Code.
(4) 'Divisible
property' means all real and personal property as set forth below:
a. All
appreciation and diminution in value of marital property and divisible property of the parties occurring after the date of
separation and prior to the date of distribution, except that appreciation or diminution in value which is the result of
post separation actions or activities of a spouse shall not be treated as divisible property.
b. All
property, property rights, or any portion thereof received after the date of separation but before the date of distribution
that was acquired as a result of the efforts of either spouse during the marriage and before the date of separation, including,
but not limited to, commissions, bonuses, and contractual rights.
c. Passive
income from marital property received after the date of separation, including, but not limited to, interest and dividends.
d. Increases
and decreases in marital debt and financing charges and interest related to marital debt.
(c) There
shall be an equal division by using net value of marital property and net value of divisible property unless the court determines
that an equal division is not equitable. If the court determines that an equal division is not equitable, the court shall
divide the marital property and divisible property equitably. The court shall consider all of the following factors under
this subsection:
(1) The income, property, and liabilities of each party at the
time the division of property is to become effective.
(2) Any obligation for support
arising out of a prior marriage.
(3) The duration of the marriage and the age and
physical and mental health of both parties.
(4) The need of a parent with custody
of a child or children of the marriage to occupy or own the marital residence and to use or own its household effects.
(5) The
expectation of pension, retirement, or other deferred compensation rights that are not marital property.
(6) Any
equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the
party not having title, including joint efforts or expenditures and contributions and services, or lack thereof, as a spouse,
parent, wage earner or homemaker.
(7) Any direct or indirect contribution made by
one spouse to help educate or develop the career potential of the other spouse.
(8) Any
direct contribution to an increase in value of separate property which occurs during the course of the marriage.
(9) The
liquid or non liquid character of all marital property and divisible property.
(10) The difficulty
of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability
of retaining such asset or interest, intact and free from any claim or interference by the other party.
(11) The
tax consequences to each party, including those federal and State tax consequences that would have been incurred if the marital
and divisible property had been sold or liquidated on the date of valuation. The trial court may, however, in its discretion,
consider whether or when such tax consequences are reasonably likely to occur in determining the equitable value deemed appropriate
for this factor.
(11a) Acts of either party to maintain, preserve, develop, or expand; or to waste, neglect,
devalue or convert the marital property or divisible property, or both, during the period after separation of the parties
and before the time of distribution.
(11b) In the event of the death of either party prior to the entry
of any order for the distribution of property made pursuant to this subsection: a. Property
passing to the surviving spouse by will or through intestacy due to the death of a spouse.
b. Property held as tenants by the entirety or as joint tenants with rights
of survivorship
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passing to the surviving spouse due to the
death of a spouse.
c. Property passing to the surviving spouse from life insurance,
individual retirement accounts, pension or profit‑sharing plans, any private or governmental retirement plan or annuity
of which the decedent controlled the designation of beneficiary (excluding any benefits under the federal social security
system), or any other retirement accounts or contracts, due to the death of a spouse.
d. The
surviving spouse's right to claim an 'elective share' pursuant to North
Carolina statutes 30‑3.1 through NC statutes 30‑33, unless otherwise
waived.
(12) Any other factor which the court finds to be just and proper.
(c1) Notwithstanding
any other provision of law, a second or subsequent spouse acquires no interest in the marital property and divisible property
of his or her spouse from a former marriage until a final determination of equitable distribution is made in the marital
property and divisible property of the spouse's former marriage.
(d) Before, during
or after marriage the parties may by written agreement, duly executed and acknowledged in accordance with the provisions
of North
Carolina statutes 52‑10 and 52‑10.1, or by a written agreement
valid in the jurisdiction where executed, provide for distribution of the marital property or divisible property, or both,
in a manner deemed by the parties to be equitable and the agreement shall be binding on the parties.
(e) Subject
to the presumption of subsection (c) of this section that an equal division is equitable, it shall be presumed in every action
that an in‑kind distribution of marital or divisible property
is equitable. This presumption may be rebutted by the greater weight of the evidence, or by evidence that the property is
a closely held business entity or is otherwise not susceptible of division in‑kind. In any action in which the presumption
is rebutted, the court in lieu of in‑kind distribution shall provide for a distributive award in order to achieve equity
between the parties. The court may provide for a distributive award to facilitate, effectuate or supplement a distribution
of marital or divisible property. The court may provide that any distributive award payable over a period of time be secured
by a lien on specific property.
(f) The court shall provide for an equitable
distribution without regard to alimony for either party or support of the children of both parties. After the determination
of an equitable distribution, the court, upon request of either party, shall consider whether an order for alimony or child
support should be modified or vacated pursuant to North
Carolina statutes 50‑16.9 or 50‑13.7.
(g) If
the court orders the transfer of real or personal property or an interest therein, the court may also enter an order which
shall transfer title, as provided in North
Carolina statutes 1A‑1, Rule 70 and NC statutes 1‑228.
(h) If
either party claims that any real property is marital property or divisible property, that party may cause a notice of lis
pendens to be recorded pursuant to Article 11 of Chapter 1 of the General Statutes. Any person whose conveyance or encumbrance
is recorded or whose interest is obtained by descent, prior to the filing of the lis pendens, shall take the real property
free of any claim resulting from the equitable distribution proceeding. The court may cancel the notice of lis pendens upon
substitution of a bond with surety in an amount determined by the court to be sufficient provided the court finds that the
claim of the spouse against property subject to the notice of lis pendens can be satisfied by money damages.
(i) Upon
filing an action or motion in the cause requesting an equitable distribution or alleging that an equitable distribution will
be requested when it is timely to do so, a party may seek injunctive relief pursuant to North
Carolina statutes 1A‑1, Rule 65 and Chapter
1, Article 37, to prevent the disappearance, waste or conversion of property alleged to be marital property, divisible property,
or separate property of the party seeking relief. The court, in lieu of granting an injunction, may require a bond or other
assurance of sufficient amount to protect the interest of the other spouse in the property. Upon application by the owner
of separate property which was removed from the marital home or possession of its owner by the other spouse, the court may
enter an order for reasonable counsel fees and costs of court incurred to regain its possession, but such fees shall not
exceed the fair market value of the separate property at the time it was removed.
(i1) Unless good cause is shown that there should not be an interim distribution,
the court may, at any time after an action for equitable distribution has been filed and prior to the final judgment of equitable
distribution, enter orders declaring what is separate property and may also enter orders dividing part of the marital property,
divisible property or debt, or marital debt between the parties. The partial distribution may provide for a distributive
award and may also provide for a distribution of marital property, marital debt, divisible property, or divisible debt. Any
such orders entered shall be taken into consideration at trial and proper credit given.
Hearings held pursuant to this subsection may be held at sessions arranged by the chief district court judge pursuant
to North
Carolina statutes 7A‑146 and, if held at such sessions, shall not be subject to the reporting requirements of NC statutes
7A‑198.
(j) In
any order for the distribution of property made pursuant to this section, the court shall make written findings of fact that
support the determination that the marital property and divisible property has been equitably divided.
(k) The
rights of the parties to an equitable distribution of marital property and divisible property are a species of common ownership,
the rights of the respective parties vesting at the time of the parties' separation.
(l) (1) A
claim for equitable distribution, whether an action is filed or not, survives the death of a spouse so long as the parties
are living separate and apart at the time of death.
(2) The provisions of Article
19 of Chapter 28A of the General Statutes shall be applicable to a claim for equitable distribution against the estate of
the deceased spouse.
(3) Any claim for equitable distribution against the surviving
spouse made by the estate of the deceased spouse must be filed with the district court within one year of the date of death
of the deceased spouse or be forever barred.
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North Carolina
code § 50‑41. Family Law Arbitration Act. Purpose;
short title.
(a) It is the policy of this State to allow, by agreement of all parties, the
arbitration of all issues arising from a marital separation or divorce, except for the divorce itself, while preserving a
right of modification based on substantial change of circumstances related to alimony, child custody, and child support.
Pursuant to this policy, the purpose of this Article is to provide for arbitration as an efficient and speedy means of resolving
these disputes, consistent with Chapters 50, 50A, 50B, 51, 52, 52B, and 52C of the General Statutes and similar legislation,
to provide default rules for the conduct of arbitration proceedings, and to assure access to the courts of this State for
proceedings ancillary to this arbitration.
(b) This Article may be cited as the
North Carolina Family Law Arbitration Act.
NC code § 50‑42. Arbitration agreements made valid, irrevocable, and enforceable.
(a) During,
or after marriage, parties may agree in writing to submit to arbitration any controversy, except for the divorce itself,
arising out of the marital relationship. Before marriage, parties may agree in writing to submit to arbitration any controversy,
except for child support, child custody, or the divorce itself, arising out of the marital relationship. This agreement is
valid, enforceable, and irrevocable except with both parties' consent, without regard to the justiciable character of the
controversy and without regard to whether litigation is pending as to the controversy.
(b) This
Article does not apply to an agreement to arbitrate in which a provision stipulates that this Article does not apply or to
any arbitration or award under an agreement in which a provision stipulates that this Article does not apply.
NC code § 50‑43. Proceedings to compel or stay arbitration.
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(a) On a party's application
showing an agreement under North
Carolina statutes 50‑42
and an opposing party's refusal to arbitrate, the court shall order the parties to proceed with the arbitration. If an opposing
party denies existence of an agreement to arbitrate, the court shall proceed summarily to determine whether a valid agreement
exists and shall order arbitration if it finds for the moving party; otherwise, the application shall be denied.
(b) Upon
the application of a party, the court may stay an arbitration proceeding commenced or threatened on a showing that there
is no agreement to arbitrate. This issue, when in substantial and bona fide dispute, shall be immediately and summarily tried
and the court shall order a stay if it finds for the moving party. If the court finds for the opposing party, the court shall
order the parties to go to arbitration. An arbitrator shall decide whether a condition precedent to arbitrability has been
fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable. If a party to a judicial proceeding
challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding
may continue pending final resolution of the issue by the court unless the court otherwise orders.
(c) If
an issue referable to arbitration under an alleged agreement is involved in an action or proceeding pending in a court of
competent jurisdiction, the application shall be made in that court. Otherwise, the application may be made in any court
of competent jurisdiction.
(d) The court shall order a stay in any action or proceeding
involving an issue subject to arbitration if an order or an application for arbitration has been made under this section.
If the issue is severable, the stay may be with respect to that specific issue only. When the application is made in an action
or proceeding, the order compelling arbitration shall include a stay of the court action or proceeding.
(e) An
order for arbitration shall not be refused and a stay of arbitration shall not be granted on the ground that the claim in
issue lacks merit or because grounds for the claim have not been shown.
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North Carolina code § 50‑41. § 50‑91. Appointment
of parenting coordinator.
(a) The court may appoint a parenting coordinator at any time during the proceedings
of a child custody action involving minor children brought under Article 1 of this Chapter if all parties consent to the
appointment. The parties may agree to limit the parenting coordinator's decision‑making authority to specific issues
or areas.
(b) The court may appoint a parenting coordinator without the consent
of the parties upon entry of a custody order other than an ex parte order, or upon entry of a parenting plan only if the
court also makes specific findings that the action is a high‑conflict case, that the appointment of the parenting coordinator
is in the best interests of any minor child in the case, and that the parties are able to pay for the cost of the parenting
coordinator.
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(c) The order appointing
a parenting coordinator shall specify the issues the parenting coordinator is directed to assist the parties in resolving
and deciding. The order may also incorporate any agreement regarding the role of the parenting coordinator made by the parties
under subsection (a) of this section. The court shall give a copy of the appointment order to the parties prior to the appointment
conference. Notwithstanding the appointment of a parenting coordinator, the court shall retain exclusive jurisdiction to
determine fundamental issues of custody, visitation, and support, and the authority to exercise management and control of
the case.
(d) The court shall select a parenting coordinator from a list maintained
by the district court. Prior to the appointment conference, the court must complete and give to the parenting coordinator
a referral form listing contact information for the parties and their attorneys, the court's findings in support of the appointment,
and any agreement by the parties.
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North Carolina code § 50‑41. Expedited
child support §50‑30. Findings;
policy; and purpose.
(a) Findings. – The General Assembly makes the following findings:
(1) There
is a strong public interest in providing fair, efficient, and swift judicial processes for establishing and enforcing child
support obligations. Children are entitled to support from their parents, and court assistance is often required for the
establishment and enforcement of parental support obligations. Children who do not receive support from their parents often
become financially dependent on the State.
(2) The State shall have laws that meet
the federal requirements on expedited processes for obtaining and enforcing child support orders for purposes of federal
reimbursement under Title IV‑D of
the Social Security Act, 42 U.S.C. § 66(a)(2). The Secretary of the United States Department of Health and Human Services
may waive the expedited process requirement with respect to one or more district court district as defined in North
Carolina statutes 7A‑133
on the basis of the effectiveness and timeliness of support order issuance and enforcement within the district.
(3) The
State has a strong financial interest in complying with the expedited process requirement, and other requirements, of Title
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IV‑D of the Social Security Act, but the State would incur
substantial expense in creating statewide an expedited child support process as defined by federal law.
(4) The State's judicial
system is largely capable of processing child support cases in a timely and efficient manner and has a strong commitment
to an expeditious system.
(5) The substantial expense the State would incur in creating
a new system for obtaining and enforcing child support orders would be reduced and better spent by improving the present
system.
(b) Purpose and Policy. – It is the policy of this State to ensure,
to the maximum extent possible, that child support obligations are established and enforced fairly, efficiently, and swiftly
through the judicial system by means that make the best use of the State's resources. It is the purpose of this Article to
facilitate this policy. The Administrative Office of the Courts and judicial officials in each district court district as
defined in North
Carolina statutes 7A‑133 shall make a diligent effort to ensure that child support cases, from the time of filing to
the time of disposition, are handled fairly, efficiently, and swiftly. The Administrative Office of the Courts and the State
Department of Health and Human Services shall work together to improve procedures for the handling of child support cases
in which the State or county has an interest, including all cases that qualify in any respect for federal reimbursement under
Title IV‑D of the Social Security Act.
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North Carolina code § 50‑41. § 51‑3. Want
of capacity; void and voidable marriages.
All marriages between any two persons nearer of kin than first cousins, or between double first cousins, or between a
male person under 16 years of age and any female, or between a female person under 16 years of age and any male, or between
persons either of whom has a husband or wife living at the time of such marriage, or between persons either of whom
is at the time physically impotent, or between persons either of whom is at the time incapable of contracting from want of
will or understanding, shall be void. No marriage followed by cohabitation and the birth of issue shall be
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declared void after the death of either of the parties for any of
the causes stated in this section except for bigamy. No marriage by persons either of whom may be under 16 years of age,
and otherwise competent to marry, shall be declared void when the girl shall be pregnant, or when a child shall have been
born to the parties unless such child at the time of the action to annul shall be dead. A marriage contracted under a representation
and belief that the female partner to the marriage is pregnant, followed by the separation of the parties within 45 days
of the marriage which separation has been continuous for a period of one year, shall be voidable unless a child shall have
been born to the parties within 10 lunar months of the date of separation. |
The North Carolina statutes
that
appear here may not include all provisions of Family Law. Some redacting has occurred. You should consult NC code or a
North Carolina divorce attorney.
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