Recent North Carolina Legislation Affecting Family Law and Divorce – Part 2

This is Part 2 of a recent article that I wrote for the NCAJ Trial Briefs magazine regarding recent laws passed by the North Carolina General Assembly which affect family law and divorce issues.

Foster Care Children’s Bill of Rights

The General Assembly passed a bill entitled “Foster Care Children’s Bill of Rights” which became law on July 23, 2013.  The new law amends N.C.G.S. § 131D-10.1 to insert a list of 11 goals with regards to foster care that are designed to make the quality of life better for foster children.   The bill states that violations of the new law do not create a cause of action against the State, the NC Department of Health and Human Services, or any person providing foster care.

Domestic Violence Probation Changes

Session Law 2013-123 amends the Criminal Procedure Act regarding terms of probation for a defendant convicted of criminal domestic violence.   The new law makes a distinction between the procedures for defendants placed on supervised probation or unsupervised probation.  While there were previously specific requirements of defendants on supervised probation, the new law adds specific requirements of defendants on unsupervised probation.

Agreements Regarding Spousal Support Allowed/Not Terminated by Reconciliation

One significant change to existing law was the addition of a new paragraph to Chapter 52.  Prior to the enactment of Session Law 2013-140, married couples in North Carolina were prevented by public policy from entering into an agreement which dealt with spousal support unless the agreement qualified as a separation agreement.   This meant that the parties had to have the intent to be separated and actually separated or planning to immediately separate.  Additionally, if the spouses did deal with spousal support in a valid separation agreement and the couple later reconciled, the support provisions were deemed terminated as a result of the reconciliation.

However, the addition by the 2013 Legislature of subsection (a1) to N.C.G.S. § 52-10 changed that limitation.   The new subsection amends G.S. § 52-10 by adding a new subsection (a1) which provides that an agreement between a husband and wife during separation which waives, releases or sets obligations regarding post-separation support, alimony or spousal support is valid and not against public policy (emphasis added).  Also, the new law provides that the provision remains valid if there is a reconciliation and subsequent separation if the agreement is (1) in writing; (2) the provision waiving the rights is clearly stated in the contract; and (3) the contract was acknowledged before a certifying officer.  The new law also amends G.S. § 50-16.6(b) to add a contract under 52-10(a1) to the list of agreements which can waive spousal support and attorney fees.  The law was effective when it became law on June 19, 2013.  The law does not limit its application to agreements entered after the enactment of the statute, so it appears the law could be construed to apply to any agreements containing such provisions, no matter when they were entered.  This remains to be seen.  One limitation of the new statute is that it requires the parties to be separated.  So, it does not allow parties to agree to support provisions after marriage while they are still living together.  However, this new subsection is separate from G.S. § 52-10.1, which deals specifically with separation agreements, so this new law should apply to agreements between parties who are separated but are not intending to remain separated or are attempting to reconcile.

Children Born Out of Wedlock Changes

With the enactment of Session Law 2013-198, the Legislature removed references to “illegitimate” and “bastardy” in the General Statutes.   The law removes references to “illegitimate children” in all statutes, from provisions regarding criminal offenses for the failure to support a child , to intestate succession , and Chapter 49.  This bill is a modernization of terms used in the General Statutes.

Findings of Fact/Conclusions of Law Not Required in DVPO

In the 2012 decision of Kenton v Kenton,  the North Carolina Court of Appeals issued a decision which caused a good deal of concern about the validity of domestic violence orders entered by consent without a Findings of Fact and/or Conclusion of Law that an act of domestic violence had occurred.  Prior to this decision, it was not uncommon for parties to a domestic violence action to enter consent orders which contained some or all of the protections and/or restrictions of a Domestic Violence Protective Order, but did not contain a Finding of Fact or Conclusion of Law that an act of domestic violence had occurred.  This benefitted both parties who may have faced a hearing on evidence that could go either way, it benefitted a plaintiff who may not want to face an abuser, and it benefitted a defendant who may not have wanted a finding of domestic violence against him/her.  In Kenton, however, the Court of Appeals held that domestic violence protective orders that did not contain Findings of Fact or Conclusions of Law that an act of domestic violence occurred were void ab initio.  This decision made all consent protective orders without a finding of domestic violence and all of the related restrictions and provisions invalid.

Session Law 2013-237  reversed the Kenton decision.  The bill inserted a new subsection (b1) into N.C.G.S. § 50B-3.  The new subsection allows a consent protective order to be entered without Findings of Fact and Conclusions of Law if the parties agree, in writing, that none are required.  The new subsection provides that a domestic violence protective order entered under this subsection has the same power and effect as an order containing findings of fact and conclusions of law regarding domestic violence.  The law became effective October 1, 2013 and applies to orders entered on or after that date.

Interlocutory Appeals

On June 13, 2013, the North Carolina Supreme Court issued its opinion in Duncan v. Duncan,  which clarified that attorney’s fees claims that were related to family law claims were not part of the substantive claims and therefore the substantive claims could be appealed and such appeals were not interlocutory.  The 2013 Legislature went even further with the passage of Session Law 2013-411,  which provides that family law claims which have been resolved in a final order may be appealed even though other claims in the same action are not final orders.  Prior to this law, numerous family law appeals had been declared interlocutory and dismissed because there were unresolved claims still pending at the trial court, despite the issues not being related.

In Session Law 2013-411, the General Assembly inserted a new statute into Chapter 50 as G.S. § 50-19.1.   The new statute provides that a party may appeal from an order or judgment for each of the following claims if the order or judgment would otherwise be appealable as a final order or judgment even though there are still pending issues in the same case: absolute divorce, divorce from bed and board, child custody, child support, alimony or equitable distribution.  Additionally, the party does not waive the right to appeal if the party does not immediately appeal a final order or judgment.  Last, the statute provides that an appeal of a final order or judgment does not deprive the trial court of jurisdiction over the other claims in the action.  The act was effective when it became law on August 23, 2013.  This new law allows for a good deal of flexibility for family law practitioners who can now pursue appeals of final orders immediately or wait until the other issues in the case are resolved and not fear the appeal being dismissed as interlocutory or missing an appeal deadline because the appellant waited too long.

Sharia Law Bill

One of the more publicized bills that was passed in this session was the so-called “Sharia Law” bill.   This bill garnered attention in the national media.  The law creates a new Article 7A in Chapter 1 of the General Statutes entitled “Application of Foreign Law.”  The new law provides definitions for “fundamental constitutional right” as a fundamental law guaranteed by the United States or North Carolina Constitution  and “foreign law” as any law used by any entity that North Carolina does not have to recognize under the Full Faith and Credit Clause of the United States Constitution.   The new law provides that it is the public policy of North Carolina that its citizens will not be subject to the application of foreign law which violates a fundamental constitutional right,  that contracts which include a choice of law provision which is based on foreign law that violates a fundamental constitutional right will be modified so as not to violate such rights,  that cases shall not be transferred to a foreign venue which would likely lead to the violation of a fundamental constitutional right,  and that while citizens may enter agreements which limit their constitutional rights, any ambiguity in such agreements shall be strictly construed in favor of preserving fundamental constitutional rights.   However, the law is limited to proceedings under Chapter 50 or 50A.   The act became effective on September 1, 2013.  It remains to be seen how effective or ineffective this law is on proceedings under the Hague Convention or other applicable treaties.

While a lot of press was dedicated to the Long Session of the 2013 General Assembly for reasons apart from those issues affecting family law, family law practitioners should become familiar with the above laws as several of them will have an impact on our day to day work.