Two of you submitted very exciting questions in frequently misunderstood areas in the nuances of family law. The first question deals with custody as part of a Chapter 50B domestic violence protective order. The second involves cohabitation when you are the recipient of alimony under an order or agreement.
My 50B expired one year ago. It included custody of my then 2-year-old. After a period of time does that custody order become permanent if not contested by her father?
Carolyn Answers …
You ask a very good question and one that many times confuses people. Did you ever play a card game where one particular card trumps another card in the same deck of cards, such as Rook? A regular custody proceeding is under Chapter 50. Contrast the regular custody proceeding with a Chapter 50B. Chapter 50B is a domestic violence proceeding, and there are sometimes temporary custody provisions in situations of domestic violence under Chapter 50B. A regular custody proceeding (Chapter 50) trumps a custody proceeding under a Chapter 50B custody order. While all claims are family law and domestic in nature, a regular custody hearing under Chapter 50 controls over the 50B. All these chapter numbers reference the North Carolina General Statutes, put in place by the North Carolina General Assembly.
A Chapter 50B custody is intended to be very temporary. The 50B custody gives a litigant time to go to a regular custody proceeding, and a parent with 50B custody should move immediately to get a regular custody order under Chapter 50. Chapter 50B specifically states:
“The court may renew a protective order for a fixed period of time not to exceed two years, … however, … a temporary award of custody entered as part of a protective order may not be renewed to extend a temporary award of custody beyond the maximum one-year period.”
Unfortunately, your 50B custody order always expires at the one-year mark. The 50B custody order does not become permanent, and to get a permanent order, you must file a complaint for child custody (Chapter 50) in District Court. You have no valid child custody order if your 50B is expired.
I think the point of confusion is that a Chapter 50 temporary child custody order can become permanent after one year if neither parent has made any effort to get a permanent order. This rule does not apply to a Chapter 50B child custody order. Your custody order has expired under your 50B. You have no protection for your daughter.
My husband and I divorced a couple of years ago and there is a cohabitation law included. Since the divorce, I have met a wonderful man who has been my guardian angel and has been there for me through all the ups and downs following a divorce. Here is my question: I am renting a townhouse but am having trouble keeping up with the rent. He rents his own apartment, but with him moving in with me we would be more financially stable. He would rent the extra bedroom I have and pay me half the rent, as if I were the landlord. I have been told that I could get by this way, as it would not be considered co-habitation. I don’t want to lose my alimony but was wondering if there was a way to cohabitate by law and still receive my alimony.
Carolyn Answers …
Alimony can be an albatross for a recipient getting on with his/her life. Your situation is the perfect example of this albatross. Cohabitation terminates alimony under our state’s law.
No, no, no. The arrangement you propose is not going to likely work, and you are going to lose your alimony. Whoever told you this is on your ex’s side to get your alimony terminated.
One of the key factors a judge (or jury) would look at in a termination of alimony case is whether you reside under the same roof. Your arrangement puts you squarely in the “cross-hairs” of a termination bullet.
Let’s examine the statute. Chapter 50-16.9(b) states: “Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.” In reality, interpretation of this statute can become very murky, factual and intense with one judge viewing a relationship one way and another judge viewing the relationship another way.
Cases involving alimony recipients merely dating and engaging in sexual relations is not cohabitation. Going on occasional overnight vacations with a lover is not cohabitation (Patterson v. Patterson). In another case, the court examined how often the friend stayed overnight, whether he kept his clothes permanently there and to what extent the wife’s residence was the lover’s base of operations (Craddock v. Craddock). Craddock v. Craddock, as applied to your situation, is grim for you. Your home is your lover’s base of operations, and his clothing is there – probably all of his clothing if he is a renter. You are commingling finances. Sure, he’s a renter, but what is the substantive difference between the rental arrangement you propose and a married couple who both work sharing a mortgage expense or rental payment?
Get a non-romantic roommate to help with your financial situation, unless you want to muddy the waters and create legal entanglement. I would not get into a legal battle over your alimony as this is expensive and you have nothing to gain. If you are happy, consider getting rid of the albatross of alimony and getting on with your life. You and only you can decide if the guardian angel is more important than the alimony. You can certainly continue dating your guardian angel; going on trips and having weekend overnights, but don’t push the arrangement any further than this, unless you are prepared for a legal battle and/or giving up the alimony.
Send your questions on family law and divorce matters to Ask Carolyn at email@example.com or PO Box 9023, Greensboro, NC 27427. Please do not put identifying information in your questions. Note that the answers in Ask Carolyn are intended to provide general legal information, and the answers are not specific legal advice for your situation. The column also uses hypothetical questions. A subtle fact in your unique case may determine the legal advice you need in your individual case. Also, please note that you are not creating an attorney-client relationship with Carolyn J. Woodruff by writing or having your question answered by Ask Carolyn. Ask Carolyn ia a regular column, but not necessarily weekly.