How long will it take for me to get a divorce if there was domestic violence involved?

Question: How long will it take for me to get a divorce if there was domestic violence involved?

Answer:

An act of domestic violence will not have an effect on the length of time it will take to obtain an “Absolute Divorce”, however, you may be eligible for a “Divorce from Bed and Board”.

North Carolina recognizes what is called “Absolute Divorce” only after the parties have been separated for a year or more. No legal document is required, rather only the physical separation of the parties for a year can establish separation. One of the parties must have been living in North Carolina for 6 months prior to the filing of the action. This is the most common form of divorce.

However, North Carolina also recognizes “Divorce from Bed and Board”. A Divorce from Bed and Board suspends the effect of marriage but does not dissolve the marriage as an absolute divorce would do. A divorce from bed and board means that your spouse will not be entitled to the rights a spouse typically enjoys. To sue for divorce from bed and board you would need to establish one of the six grounds listed in North Carolina General Statute § 50-7. One of those grounds is cruel or barbarous treatment that endangers the life of the other. If your husband is cruelly or barbarously treating you, you may have grounds for divorce from bed and board. If a Judge grants you divorce from bed and board, you could be granted exclusive possession of the marital home as well.

You may also be eligible for a “50-B” restraining order which may help protect you from further acts of violence.

Please consult a qualified family law attorney that can help you with these issues.

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Advanced Supervised Release

Sentencing in North Carolina can be confusing for attorneys, let alone defendants.  While we strive to do everything we can to prevent our clients from being found guilty, at The Dummit Law Firm we are also diligent in taking time to understand the ramifications of sentencing, and explaining that to our clients.

As part of that duty, we keep our fingers on the pulse of the North Carolina Legislature.  The Justice Reinvestment Act, passed in 2011, created a new program called Advanced Supervised Release, or “ASR.”  The program seeks to provide incentives for people to complete programs that would reduce the likelihood of that person reoffending once they are released.  Importantly, this program can reduce the actual time defendants spend in prison, and can even reduce that time below their “minimum sentence.”

Who is eligible for ASR?

Eligible defendants are those defendants who enter a plea of guilty or are found guilty of most crimes on or after January 1, 2012.  Additionally, only certain classes of felonies and prior record levels qualify.  For instance, a defendant is eligible for the program if he or she is found guilty of a Class D felony, but only if his or her prior record level is between I-III, while all those found guilty of a Class H felony, regardless of prior record level, is eligible for the program.

Below is a North Carolina Felony Sentencing Chart.  The shaded areas represent those offense classes and prior record levels that are eligible for Advanced Supervised Release.

 Advanced Supervised Release Felony Sentencing Chart

How much time do I have to do if I qualify for the ASR program?

This will depend on your charge, prior record, and sentence.  The general rule, though, is that your release date, or ASR date, is the shortest mitigated sentence, or, if you already received a sentence in the mitigated range, 80% of your minimum sentence.

For example, if you are convicted of Possession of a Controlled Substance with Intent to Manufacture, Sell or Deliver, a Class G felony, have a prior record level III, and are sentenced to the presumptive range of 13-17 months, your sentence can be reduced to the shortest mitigated sentence of nine months.  Under the same example, if you were already sentenced in the mitigated range, say 10-13 months, your sentence would be reduced to 80% of the minimum sentence, or eight months.

What does ASR entail?

The Advanced Supervised Release Program mandates that inmates in the program attend “risk reduction incentive” programs to be determined by the Department of Corrections.  Typically, these are classes you take while in custody.  Additionally, your ASR early termination date may be terminated if you are terminated from the program.

How do I get ASR?

Typically, you must ask the judge to enter you into the ASR program at the time your sentence is imposed.  That is why it is very important to have a good criminal defense attorney to assist you.

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Speeding Ticket Q&A- military

Question: I was recently pulled over for speeding (the citation reads: in excess of 55mph), and my court date is next month. I planned on fighting it, however I will be out of state due to military training during my court date.

I had contacted the county courthouse DA’s office, and apparently the DA agreed to reduce the citation to an improper equipment charge, which is still not what I wanted. According to the receptionist I spoke with, “by order of the judge” the court is not allowing any continuances. Can they really deny me a continuance and essentially FORCE me to plead guilty and pay a fine just because I will be out of state due to military duties? I have already faxed them over info proving I am military and that I will be out of state during the court date.

I am really at a loss for what to do here. I really would prefer a continuance. Any advice would be greatly appreciated, thank you!

Your Reply: Under the Solders and Sailors Act the Court is supposed to continue any and all court proceedings until you have completed any active military duty, however you would need an attorney to appear for you to make the motion on the court date. If you truly believe you did not commit any infraction of the law then you could pursue this line of litigation. The wiser move however would be to accept the State’s reduction to improper equipment as it carries no insurance nor DMV points. You would have to pay the costs and a surcharge of $50.00 for the reduction. Again, if you believe you wish to fight a ticket which carries no points, then you need to invoke the Solders and Sailors Act, however your time and energies would probably be better spent in other directions. Although the prosecutors office offered the reduction, you do still need to be certain that you get this done before you leave town. Dot the I’s and cross the T’s or you may be coming home to a Failure to appear or a conviction of the original speeding charge.

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Q&A- Consensual Underage Sex & Touching with Girlfriend

Question: https://www.lawguru.com/answers/answer/show/540690065

Category: Sexual Harassment Law
Location: North Carolina

Question: I am 16 years old and I will be turning 17 in June. My girlfriend is 14 and will be turning 15 in a few weeks. What would be any illegal touching? I do not want to have sex. Can her parents post a restraining order against me? And when she turns 16 and I’m 18, what are the illegal things and legal things we can do?

Your Reply: There are two types, for lack of a better term, of statutory rape. The most serious, which is a class B1 felony, prohibits vaginal intercourse with a child who is 13, 14 or 15 years old, when the defendant is at least 6 years older than the victim. N.C.G.S. 14-27.2A. The lesser offense, which is a class C felony, prohibits vaginal intercourse with a child who is 13, 14 or 15 when the defendant is more than four but less than six years older than the victim. N.C.G.S. 14-27.7A(b). Statutory sexual offenses require a sexual act other than vaginal intercourse, but have the same age limitations as statutory rape. The age limitations in the charge of indecent liberties are a little more relaxed. The statute requires the defendant to be above the age of 16 and the victim to be below the age of 16, however, the defendant must be at least five years older than the victim. These do not apply to your situation. Sexual Battery is the only other possible charge, and there are no age limitations on that. To be convicted of that offense, the defendant must engage in sexual contact with the victim, by force and against their will. As long as the sexual contact is consensual, it is not sexual battery. The simple answer to your question is that you need to respect the young woman’s boundaries, and “no” means NO, but there is not a criminal violation if you both agree to have contact with each other.

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Cross-State Surrogacy Legal Battle

A CNN article posted recently tells the story of a woman, Crystal Kelley, who chose to be a surrogate for a couple to supplement her income after losing her job. Ms. Kelley found a couple nearby her hometown in Connecticut and agreed to be their surrogate. Then, during the fifth month of pregnancy after a series of ultrasounds, it was discovered that the unborn child had several potentially life-threatening disorders and abnormalities. The biological parents already had three children who were born premature and with medical problems and two of their three children spent months in the hospital after birth. The couple felt that the surgeries required to keep this child alive would cause it to suffer more than necessary, and felt that the humane option was to terminate the pregnancy.

This is not a debate on the legality or ethics of abortion. The legal battle started when Ms. Kelley refused to have an abortion, even after the biological parents, who were funding her surrogacy and paying all of her medical bills, requested her to have an abortion. They couple offered to pay her $10,000, which would pay the remainder of her $22,000 surrogacy fee (since at this point she was only halfway through) after she ended the pregnancy. Kelley considered this offer, then refused. Both parties hired attorneys and it became a legal battle. The couple considered the unborn child to be theirs, but Kelley also thought she had rights over it since she was physically in control of the child. In Connecticut, the biological parents were considered the legal parents. Ms. Kelley’s solution was to move to a state where surrogacy was not recognized, and therefore she had parental rights of the unborn child. Ms. Kelley moved to Michigan, delivered the child, and gave it up for adoption to another couple also raising children with special needs.

There is no doubt that Ms. Kelley’s actions constituted a breach of contract. Other than the contract and custody issues, could Ms. Kelley’s actions also be considered criminal? Could this be considered theft? Or worse, kidnapping?

Read the full article here: http://www.cnn.com/2013/03/04/health/surrogacy-kelley-legal-battle/index.html?hpt=hp_c1

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Q&A: Masturbation on Film

Question: In North Carolina would it be considered solicitation to pay someone to masturbate on film for the purposes of producing and distributing video for a pornographic website? No actual intercourse would be involved.

Our Answer: Under North Carolina Statutes the “Solicitation for Prostitution” you are asking about is only intercourse. see NCGS 14-203.  The term “prostitution” shall be construed to include the offering or receiving of the body for sexual intercourse for hire, and shall also be construed to include the offering or receiving of the body for indiscriminate sexual intercourse without hire. 

However you would be violating other laws in North Carolina such as NCGS § 14‑190.5. Preparation of obscene photographs, slides and motion pictures. Every person who knowingly: (1) Photographs himself or any other person, for purposes of preparing an obscene film, photograph, negative, slide or motion picture for the purpose of dissemination; or (2) Models, poses, acts, or otherwise assists in the preparation of any obscene film, photograph, negative, slide or motion picture for the purpose of dissemination, shall be guilty of a Class 1 misdemeanor. 

It is interesting to note that the legislature knew that too many police would be getting warrants to look at pornography so they only allow a search warrant with the signature of an attorney. This is the only crime that I know of which the legislature did not authorize police to get search warrants: § 14‑190.20. “Warrants for obscenity offenses. A search warrant or criminal process for a violation of G.S. 14‑190.1 through 14‑190.5 may be issued only upon the request of a prosecutor.” 

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New Year’s Resolution- Balance Fun with Sense

Any law enforcement official will tell you that New Year’s Eve is one of the biggest- if not THE biggest- night for drunk driving. Which is scary for the many people who are not drinking and driving tonight, and just want to get home safely.

Police will be out in full force tonight, especially in counties where DWI Task Forces are on the roads. Statistics for counties such as Guilford are coming out for the last few years, and they show that vehicular deaths- particularly those caused by impaired drivers- are on the rise.

The Dummit Law Firm, we’d like to remind everyone to be safe this holiday. Designate a driver or have a cab service programmed into your phone. Nobody wants to be hurt, or lose a loved one to an impaired driver, and nobody wants to be the driver who causes that damage.

Does it seem odd that a defense firm is discouraging drunk driving? It shouldn’t. We’re much more than a defense firm. We’d be just as happy to help you with a civil matter, or traffic ticket, child support, workplace injury… we can be your law firm for just about anything you could need a lawyer for.

More than that, we’re part of our communities. So go out. Have a great time saying goodbye to 2012. Get a little wild, then get home safely.

And if you get in some trouble while celebrating… give us a call. We’ll be back on the 2nd.

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