Foster v. Foster
| Decision Date | 17 May 1988 |
| Docket Number | No. 8722DC1237,8722DC1237 |
| Court | North Carolina Court of Appeals |
| Parties | James W. FOSTER, Plaintiff, v. Barbara Daniel FOSTER, Defendant. |
Petree Stockton & Robinson by Lynn P. Burleson, Winston-Salem, for plaintiff, appellee.
Henry P. Van Hoy, II, and G. Wilson Martin, Jr., Mocksville, for defendant, appellant.
The only question presented by this appeal is whether the trial court erred by declaring the proceeds of the insurance on the life of Richie M. Foster were the separate property of plaintiff. Defendant argues this Court should hold that life insurance proceeds collected after separation but before equitable distribution under a policy purchased with marital funds should be classified as marital property to the extent marital funds were used to pay the premiums.
G.S. 50-20 provides, in part:
(a) Upon application of a party, the court shall determine what is the marital property and shall provide for an equitable distribution of the marital 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 in accordance with subdivision (2) of this section. Marital property includes all vested pension, retirement, and other deferred compensation rights, including military pensions eligible under the federal Uniformed Services Former Spouses' Protection Act.
(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. The expectation of nonvested...
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Edwards v. Edwards
...Johnson, 74 N.C.App. 593, 328 S.E.2d 876 (1985) (expectation of nonvested rights considered separate property), and Foster v. Foster, 90 N.C.App. 265, 368 S.E.2d 26 (1988), disc. review improvidently allowed, 324 N.C. 245, 376 S.E.2d 739 (1989) (Proceeds from husband's life insurance policy......
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Crago v. Crago
...acknowledges North Carolina courts have never applied this approach in the context of life insurance proceeds. See Foster v. Foster , 90 N.C. App. 265, 368 S.E.2d 26 (1988). Nevertheless, she urges us to adopt the analytic approach in this case, based on "important public policy considerati......
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Boger v. Boger
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§ 7.08 Characterizing Life Insurance
...Aetna Life Insurance Co. v. Wadsworth, 102 Wash.2d 652, 689 P.2d 46 (1984). This approach apparently was accepted in Foster v. Foster, 368 S.E.2d 26 (N.C. App. 1988).[315] See generally, Blanton and Ipsen, "Life Insurance: An Argument for Adoption of the Risk Payment Doctrine in Idaho," 17 ......
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§ 5.03 Determining What Is "Marital Property"
...(1993).[137] See § 3.03[2] supra.[138] Mont. Rev. Code Ann. § 40-4-202.[139] Mass. Gen. L. Ann., Ch. 208, § 34.[140] Foster v. Foster, 90 N.C. App. 265, 368 S.E.2d 26 (1988). [141] The court seems to be accepting the "risk payment" characterization approach to life insurance policies. See §......