Dear Readers,
Today’s first Ask Carolyn concerns a divorce judgment that was set aside after one of the parties to the divorce had remarried. Yikes. The second question continues the discussion of revenge porn.
Dear Carolyn,
My girlfriend thought she was divorced. I saw the divorce judgment myself. We got married a month ago and now she is telling me that she wasn’t divorced and that the judge set aside the divorce. How can this be? Am I a bigamist? Is she a bigamist?
Carolyn Answers …
Bigamy is the crime of marrying one person while you know you are married to someone else, and bigamy is a felony in North Carolina. I do not think your “spouse” would be prosecuted and convicted of bigamy in North Carolina because you both thought you were marrying a single person – even though you apparently were not. You saw and could produce a copy of what on its face looks like a valid divorce judgment.
So how can it be that your girlfriend thought she was divorced and then the judge reversed the divorce? While I believe that this happens infrequently in North Carolina, divorce judgments are occasionally reversed. There are two main reasons.
The first is that the married couple (or one of them) lies in the divorce complaint by stating that they have been living separate and apart for the required 365 days of physical separation. Don’t do this. The 365 days of not living under the same roof is a requirement under North Carolina law.
The court does not have what is called “subject matter” jurisdiction to grant the divorce if the couple has not been living separate and apart with the intent of at least one of them to live separate and apart for 365 days and thereafter (forever). Subject matter jurisdiction is a rather complex legal principle, so let’s leave it that it is an absolute requirement to be estranged, living under two separate roofs, to have a valid right to apply for an absolute divorce in North Carolina.
The second reason courts set aside a divorce judgment is a manifest injustice occurs if the divorce judgment is allowed to stand. Typically, the manifest injustice occurs related to allowing an equitable distribution of marital property to go forward. You see, an absolute divorce literally cuts off a spouse’s right to bring a claim to have the property acquired in the marriage distributed between the spouses. Such are the facts in the recent case of Miller v. Miller in Chatham County.
In Miller, the wife filed for equitable distribution before the couple physically separated; this technically is not allowed in North Carolina, as separation is a requirement for jurisdiction over an equitable distribution claim. “Former husband” remarried in Virginia in apparent reliance on the North Carolina divorce judgment. But, he also tried to block his former wife’s North Carolina equitable distribution claim on a technicality.
The court did the right thing and said, so sorry – if you want to play dirty on technicalities, then bye, bye divorce judgment. The divorce was set aside, making his new marriage void. The equitable distribution of the marital property could now go forward.
Dear Carolyn,
I am a model for an agency. On a photo shoot I went a little too far with the photographer and he has some nude images of me. Can he use these in his portfolio without my consent? Certainly, these photos would never be part of my portfolio, and I do not consent to the photographer using the pictures, although I have not told him.
Carolyn Answers …
Two weeks ago, I started the discussion in an answer to Ask Carolyn regarding revenge porn. This week we will more thoroughly discuss this emerging societal problem with another reader’s question on this hot topic.
The good news is that the North Carolina legislature seems attuned to the issue of revenge porn. The last part of this answer will discuss the amendment that passed the House in April 2017 that might particularly help the reader in this question.
In 2015, the General Assembly enacted a revenge porn statute. Commonly, people who are in relationships or marriages have revealing, private photos of each other. Then the relationship goes south, but what about the photos or videos? The law has the very tame name of “Disclosure of Private Images.”
The revenge porn statute is found in North Carolina General Statutes 14-190.5A. If you are 18 or over, it is a felony to knowingly disclose another person’s nude parts or another person engaged in a sexual act if any of the following is the purpose of the disclosure: coerce, harass, intimidate, demean, humiliate or cause financial loss to the depicted person.
The argument under the statute for your photographer is that you consented to a model shoot and you had no expectation of privacy. This is weak, in my opinion, because you were shooting your own portfolio, not a portfolio for the photographer – or at least I hope that is what your contract for the photo shoot said.
Here’s what I would do. I would send a certified letter to the photographer stating “I absolutely do not consent to the disclosure of any photograph of my person exposing my nudity. Please find enclosed North Carolina General Statutes 14-290.5A. Please be advised that such disclosure is a felony.”
In dealing with the new North Carolina revenge porn law, the district attorneys reported a loophole in enforcement. What if the picture was taken without the knowledge of the victim? The version that has passed the house adds to the statute the following language: “without the consent of the depicted person, or under the circumstances such that the person knew or should have known that the depicted person expected the images to remain private.” The proposed legislation also covers images in underwear and bizarre costumes. It will be interesting to find out exactly what a bizarre costume is.
Send your questions on family law and divorce mattter to askcarolyn@rhinotimes.com, or P.O. Box 9023, Greensboro 27427 or at Ask Carolyn’s comment section at rhinotimes.com. Please do not put identifying information in your questions. “Like” Ask Carolyn on Facebook and follow on Instagram and Twitter at Ask_Carolyn.
Note that answers are intended to provide general legal information and 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. 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.
