Sample Questions/Answers

(Please note that sample questions are included only as a reference for types of questions and suggested answers, they are not intended for use as legal authority.)

1) Criminal contempt proceedings:

a) May be commenced only with a show cause order

b) Require that an indigent person alleged to be guilty of contempt be afforded the right to counsel before any imprisonment may be imposed.

c) Do not apply to civil action for child support.

d) Restrict any term of imprisonment to a period of six months or less.

e) All of the above.

f) None of the above.

Answer #1: b

1) The amount of child support set in a separation agreement is:

a) The amount, which must be set by the court, in absence of evidence to the contrary.

b) Some evidence of the reasonable needs of the child.

c) A rebuttable presumption of the amount necessary for the child.

d) All of the above.

e) None of the above.

Answer #2: c

2) Mr. Morning and his employee, Miss Goodnight, lived together in North Carolina for 10 years before they decided to marry, both working for Mr. Morning’s company. During this ten-year period, the couple lived in Mr. Morning’s home which he had inherited free of any encumbrance. Miss Goodnight had paid all of the utility bills, all clothing, and food expenses for the couple during the time they lived together.

After their marriage, Mr. Morning withdrew $90,000 cash from his separate funds and Ms. Morning (nee Miss Goodnight) withdrew $10,000 cash from her separate funds. The couple purchased a new condominium at Atlantic Beach for $100,000 as tenants by the entirety. The couple withdrew identical amounts of $90,000 cash by Mr. Morning from his separate funds and $10,000 cash from Mrs. Morning’s separate funds and purchased CP&L stock in Mr. Morning’s name alone. The couple continued to work in the business and each contributed 15% of his/her salary to retirement, as each of them had done for last 11 years. The marriage lasted exactly one year at which time the couple separated, sought equitable distribution and are now divorced.

(A) What, if anything, does Mrs. Morning own with regard to the home the couple lived in during the ten-year period? Explain your answer.

(B) What is Mrs. Morning entitled to receive from the condominium? Explain your answer.

(C) What is Mrs. Morning entitled to receive from the CP&L stock? Explain your answer.

(D) What, if anything, are Mr. Morning and Mrs. Morning entitled to with regard to the other’s retirement accounts during the period in which they lived together and during their marriage? Explain your answer.

Answer #3:

(A) Mrs. Morning has no interest with regard to the home the couple lived in during the ten-year period prior to their marriage. North Carolina does not recognize the acquisition of “marital” rights with respect to a couple living together as man and wife but not married. Any remedy that Mrs. Morning may have would have to sound in unjust enrichment or quasi contract and could relate only to such issues. No consideration can be given in North Carolina for a sexual relationship between parties who are unmarried. Additionally, the home was inherited and was lien free. During the one-year period of the marriage, there is no evidence there was any active appreciation and thus any appreciation there may have been would have been passive. Passive appreciation on a spouse’s separate property remains separate property and the other spouse acquires no interest in same.

(B) With respect to the condominium, the parties took title as tenants by the entirety. Under McLean and its progeny, this would give rise to a strong presumption, rebuttable only by clear and convincing evidence, that the parties intended a gift to the marital estate. There is no evidence in this fact pattern to suggest this presumption could be overcome. A recent amendment to N.C.G.S. 50-20(b) changed the presumption on real property taken by the entireties during the marriage to a simple presumption rebutted by the greater weight of the evidence, although there have been no interpretive cases and it is not clear from 50-20(b) how the presumption can be overcome (i.e., by evidence of intent or only evidence of the source of funds). In practice, the stricter McLean presumption may still be applied.

(C) With respect to the CP&L stock, the result is different than with respect to the condominium. The equitable distribution statute states that separate property remains separate property regardless of how it is titled. The McLean distinction was drawn as a result of conveyancing language and law with respect to real property; no such distinction is present with respect to the CP&L stock. Therefore, the portion of the CP&L stock purchased by Mr. Morning from his separate funds ($90,000) would be his separate property. The portion of the CP&L stock attributable to Mrs. Morning’s separate funds ($10,000) would be her separate property. Nothing in this fact situation evidences any intent to make a gift to Mr. Morning.

(D) No marital rights of any type are acquired by a couple living together without the benefit of marriage. Therefore, any contributions Mr. Morning made to his retirement account prior to his marriage to Mrs. Morning would be his separate property. This would also be true for Mrs. Morning, i.e., all of her premarital contributions to her pension plan would be her separate property. All earnings and accumulations on each party’s separate retirement funds would also be their separate property. With respect to the contributions made by each party during their marriage and prior to their separation, these contributions would be marital. The contributions were 15 percent of the salary received for work performed during the marriage and as such would be classified as marital property. The court would have the authority to utilize a Qualified Domestic Relations Order to address the money in the pension plans or could determine the date of separation fair market value of the marital portion of each plan and distribute other assets as a “set off.”