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S.L. 2013-103 amended the marital property presumption found in G.S. 50-20(b)(1) to specifically include entirety property. As of October 1, 2013, the statute provides:

It is presumed that all property acquired after the date of marriage and before the date of separation is marital except property which is separate property under subdivision (2) of this subsection. It is presumed that all real property creating a tenancy by the entirety acquired after the date of marriage and before the date of separation is marital property. Either presumption may be rebutted by the greater weight of the evidence.

READ POST "Tenancy by the Entirety in Equitable Distribution: Did the statutory amendment change anything? (May 15, 2015)"

Many juvenile cases are resolved through admissions (known as guilty pleas in criminal court), often with the prosecutor’s agreement to reduce the charge. Sometimes, the reduced charge is a lesser-included offense of the original offense charged in the petition, such as changing common law robbery to misdemeanor larceny. See State v. White, 142 N.C. App. 201, 204 (2001). But, often, a reduced charge is not a lesser-included offense, like changing sexual battery to simple assault. See State v. Corbett, 196 N.C. App. 508, 511 (2009). The question then becomes: How can the State proceed on a different offense than the one charged in the petition? Can the prosecutor prepare a misdemeanor statement of charges as in criminal court? Or, is a new petition required? Here are the answers.

READ POST "Reducing Charges in Juvenile Court (May 13, 2015)"

In my last post, No Default Judgment in Contempt, I wrote about the requirement that all contempt orders contain the conclusion that respondent acted willfully when committing the act that is the basis for contempt. Of course, that conclusion must be supported by findings of fact, which in turn must be based on evidence.

So what findings are sufficient to support the required conclusion when contempt is based on the failure to pay money, such as child support?

READ POST "Contempt: Establishing Ability to Pay (May 8, 2015)"

By Guest Contributor, John Rubin*

Can the person protected by a DVPO be charged with violating the order?

Here’s a question I get occasionally: What language should I use to charge aiding and abetting a violation of a domestic violence protective order (DVPO)? Here’s a similar one: If someone is arrested for aiding and abetting a violation of a DVPO, is the person subject to the 48-hour pretrial release law for domestic violence offenses?

READ POST "Please Don’t Charge the Victim (May 6, 2015)"

Even when contempt is based upon the failure to pay child support, the contempt order must contain the conclusion of law that respondent willfully violated the court order. That conclusion must be supported by findings of fact showing respondent actually has/had the ability to comply or to take reasonable steps to comply and deliberately failed to do so. Those findings of fact must be based on evidence.

In other words, a contempt order cannot be entered by default – a court cannot assume a respondent has the ability to comply simply because the respondent fails to prove he/she does not have the ability to comply.

*Note this post has been amended to reflect the December 2015 recodification of the SCRA

Earlier posts address the SCRA in family law actions and non-judicial foreclosures. It’s my turn to address the SCRA’s application to abuse, neglect, dependency (A/N/D), and termination of parental rights (TPR) actions.

When and Why Does the SCRA Apply?

The SCRA applies to any judicial or administrative proceeding, except for criminal proceedings. 50 U.S.C. § 3912(b). There is no exception for A/N/D or TPR actions, which are “child custody’ proceedings. G.S. 50A-102(4). Child custody proceedings are specifically referenced in the SCRA. 50 U.S.C. § 3931(a) and -3932(a).

*Note, since this post was published, North Carolina laws on statutory construction were amended. Effective July 12, 2017, the terms “husband and wife” and other terms suggesting a lawful marriage must be construed to include any two individuals who are then lawfully married to each other. See S.L. 2017-102, sec. 35 creating G.S. 12-3(16). This impacts the analysis of G.S. 49A-1, where it does apply to a mother and her spouse. For a further discussion, see New Legislation Acknowledges Same-Sex Marriage, posted by our colleague Cheryl Howell on Aug. 8, 2017.

Since our blog post, Same-Sex Marriage and Adoptions of a Minor by a Stepparent, we have received several inquiries about the role of a sperm donor in an adoption proceeding. Although General Synod of the United Church of Christ v. Resinger, 12 F. Supp. 3d 790 (W.D.N.C. 2014) and Fisher-Borne v. Smith, 14 F.Supp. 3d 695 (M.D.N.C. 2014) held NC’s ban on same-sex marriage is unconstitutional, they did not specifically address parentage when a child is conceived or born during a same-sex marriage. And, although artificial reproductive technology has advanced in the last 20 years, the laws in NC have not fully addressed these advances and how they impact parentage.

Last week, two bills were introduced in the NC House pertaining to adult guardianship* – H817 and H883.  The first proposes the adoption of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) by creating a new Chapter 35B.  The second directs the Legislative Research Commission to study UAGPPJA and recommend whether NC should adopt the act.

So just what is UAGPPJA? (Pronounced, “You-Ah-Gap-Jah”)

Almost every equitable distribution case involves marital debt. And because there often is a significant amount of time between the date of separation – the point in time when the marital estate is created and valued – and the date the marital estate actually is distributed, most every case also involves post-separation changes in the amount owed on that marital debt. The amount either increases because neither party pays the bills and interest and finance charges accrue, or the amount decreases because one of the parties make payments. North Carolina law has struggled to determine the best way to address these changes in the distribution process.

READ POST "Equitable Distribution: Post-Separation Changes in Debt (April 17, 2015)"

*** Note, since this blog post was published, the General Assembly enacted S.L. 2015-58, which replaces SB 331. For more information, see this blog post on juvenile code reform legislation.

Subchapter II of the North Carolina Juvenile Code has seen few changes, since the Juvenile Code was rewritten in 1998. However, several bills are currently pending that suggest change may be coming. Some of these pending bills seek to clarify existing statutory procedures or create new procedures to provide guidance where the Juvenile Code is currently silent. However, two of the proposed changes are intended to reverse recent appellate court decisions interpreting the Juvenile Code. This list, although not exhaustive, describes pending bills that are likely to be of interest to juvenile court officials.