Three Legislative Changes Approved by NCBA BOG

Dave Holm

Brent Tanner

By Dave Holm and Brent Tanner

Your NCBA Family Law Section made four legislative proposals that were approved by the NCBA Board of Governors and made part of our association’s 2019 legislative session agenda.  We are pleased to inform you that all four proposals passed the legislature and have been signed by Governor Cooper. Three of our proposals can be found in House Bill 469. (The fourth proposal does not take effect until December 1, 2019, and will be the subject of another blog post.) Thank you to Representative Sarah Stevens for being the primary sponsor in the House and to Senator Danny Britt for helping to shepherd the bill though the Senate.

House Bill 469 became effective  October 1, 2019, and contains the following provisions. Please click on this link to see the bill:

Part  1 – Revision to NCGS 50-20.1 “Pensions, retirement and deferred compensation benefits

(Thanks to Whit Clanton for chairing the drafting committee and to all for served on this committee.)

(d) The court can divide a defined benefit plan benefit  equally without valuing it. (In response to case law that said it must be valued.)

(d1)  If party has a defined contribution plan with a separate property component evidence can be presented of contributions during the marriage (plus gains and losses) to determine the marital value.  If such evidence is not available or presented the coverture fraction can be used. (In response to case law that said only the coverture fraction could be used.)

(d1) Provides relief to North Carolina military spouses from the “frozen benefit rule” that federal law now applies to the division of military pensions. Adjusts the “coverture fraction” that is used to determine the marital portion of pension benefits, so that it is applied to the benefits that are actually divided. As a result, even though federal law causes the benefits available for distribution to be frozen at a date earlier than North Carolina law would provide, military spouses will at least receive a fair percentage of the frozen benefit.  This adjustment will also apply and afford relief to the nonparticipant spouse when any other pension, retirement, or deferred compensation plan freezes the benefits available for division.

(f1) Creates a presumption for the “separate interest” approach when available in the division of pension benefits and other applicable benefits. This approach, if available under a pension plan, provides the nonparticipant spouse with an interest that operates in whole or part independently of the participant’s interest.

(f2) Requires the trial court to order pre-retirement survivor protection for the nonparticipant spouse in the division of pension benefits and other applicable benefits, which would continue benefits to the nonparticipant in the event that the participant dies before beginning to receive any benefits.

(f3) Provides the trial court discretion to award joint and survivor annuity protection to the nonparticipant spouse in the division of pension benefits and other applicable benefits, which will continue benefits to the nonparticipant in the event of the death of the participant.  Also provides the court the discretion to allocate the cost of such protection between the spouses.

(j)  Provides for parties to have the ability to file a claim solely for the entry of an order implementing the terms of a contractual settlement of pension or retirement or deferred compensation rights, regardless of the existence of any equitable distribution case. Makes it simpler and easier for parties to obtain entry of QDROs and DROs when they have settled property division privately through a contract. Also provides relief to those parties who settled their property division by contract, but allowed a divorce to be entered without making a claim for equitable distribution and obtaining entry of QDROs and DROs by allowing the QDRO to be entered by a motion in the cause in the absolute divorce case.

Part II  – Revise Parenting Coordinator Laws

(Thanks to Katherine Frye for chairing the drafting committee and Lisa LeFante, Katie King and to all others who served on that committee. Thanks to Katie King for drafting the summary below )

The appointment of a PC (or re-appointment) no longer requires an appointment conference;

  • The court can appoint a PC at any time when a custody order or contempt order involving custody is being entered/has been entered.  No motion to modify custody or substantial change of circumstances is required.;
  • The statute now lists areas of authority for the PC that may be selected, including education and passports.
  • A PC decision is binding after the expiration of the PC’s term so long as the custody order remains in effect or until a subsequent PC or the Court reviews or modifies the PC decision.
  • The process for reviewing a PC decision is now set out with more detail, including the requirement for the moving party to subpoena the PC to attend the review hearing.
  • The statute specifies 5 types of reports that the PC can file, as well as including what happens when a PC files a report.  For example, the statute authorizes the judge to issue a show cause order upon a PC’s verified report and also allows the court to enter a temporary custody order based upon a PC’s report.
  • It is now clear that a PC can release any PC records in the PC’s discretion.  Additionally, parties may apply to the court for a subpoena to release records held by the PC with notice to the PC.
  • The court can terminate or modify a PC’s appointment for good cause shown upon a report of the PC, a motion by any party, or the court’s own motion.

Part III – Adoption Law Changes

(Thanks to Brinton Wright and Michelle Smith for chairing the adoption committee and all who serve on that committee. Thanks to Brinton Wright for drafting the summary below. References to sections are references to section numbers in the bill.)

Section 3. G.S. § 48-2-100(c) is changed to exempt adoptions of minors from the UCCJEA jurisdictional requirements when the court in the other state is only exercising its jurisdiction over the minor in a proceeding the purpose of which is consistent with the adoption of the minor in North Carolina, such as a proceeding that places guardianship of the child in an adoption agency for the purpose of consenting to the adoption.

Section 4. G.S. §§ 48-2-205 and 48-2-301(c) are changed so that if two parents have adopted a child in a foreign country and the federal government requires that the child be re-adopted by both adoptive parents in the United States before the child can qualify for automatic US citizenship, the re-adoption can be done in the name of both parents even if one adoptive parent dies before the petition to re-adopt the child is filed. Also, the requirement that two petitioners for adoption be married to one another is now limited to the adoptions of minors to allow more flexibility in adoptions of disabled adults.

Section 5. G.S. § 48-2-606 is changed to allow the court to establish a modified date of birth based on medical evidence in the adoption of a child born outside the United States and for whom no reliable birth record exists.

Section 6. This is a technical amendment to G.S. § 48-3-303(c)(12) concerning what redactions can be made to a prospective adoptive parent’s financial information in an adoption home study given to a birth parent in an independent adoption.

Section 7. This is a technical amendment to G.S. §§ 48-3-605(c), 48-3-606(14)c, 48-3-702(b1) and 48-3-703(a)(12)c that standardizes the use of the phrase “advised of the right to seek the advice of legal counsel” in the execution of consents to adoption in independent adoptions and relinquishments to an agency for adoption.

Section 8. G.S. § 48-9-102 is changed to speed up the issuance of post-adoption birth certificates.

Section 9. G.S. § 48-9-101(1) is changed to clarify that adoption confidentiality provisions do not prohibit the court returning a file-stamped copy of a document to the party who filed it.

Section 10. G.S. § 1-597 is changed to authorize the use of “legal organ” publications (vs. newspapers of general circulation) or any other method that complies with local law for service by publication outside of North Carolina. This change applies to all civil actions.



Dave Holm and Brent Tanner,
Co-Chairs of the NCBA Family Law Section Legislative Committee