Bill Summary for S 490 (2019-2020)

Summary date: 

May 1 2019

Bill Information:

View NCGA Bill Details2019-2020 Session
Senate Bill 490 (Public) Filed Tuesday, April 2, 2019
AN ACT TO AMEND THE LAWS PERTAINING TO PARENTING COORDINATORS, REVISE THE LAWS PERTAINING TO EQUITABLE DISTRIBUTION, AND TO MAKE VARIOUS CHANGES UNDER THE LAWS PERTAINING TO ADOPTIONS.
Intro. by Britt.

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Bill summary

Senate committee substitute makes the following changes to the 1st edition.

Changes the act's long title. Places the previous provisions into Part I. Adds new Parts II and III as follows.

Part II.

Amends GS 50-20.1, concerning the equitable distribution of certain marital benefits, retitling the statute Pension, retirement, and deferred compensation benefits (was, Pension and retirement benefits). Modifies and adds to the statute's provisions, now providing as follows.

Provides for the distribution of vested marital pension, retirement, or deferred compensation benefits to be payable as a lump sum from the plan, program, system, or fund for those benefits; as fixed amounts over a period of time from the plan, program, system, or fund for those benefits; as a prorated portion of the benefits made to the designated recipient at the time the participant-spouse, as defined, is eligible to receive benefits, actually begins to receive benefits, or reaches earliest retirement age (previously limited to the time the time the party actually begins to receive benefits and by appropriate domestic relations order); by awarding a larger portion of other assets to the party not receiving the benefits and a smaller share of other assets to the party entitled to receive the benefits; or as a lump sum, over a period of time in fixed amounts, by agreement (not previously an option). 

Provides for the distribution of nonvested marital pension, retirement, or deferred compensation benefits to be payable as a lump sum agreement; over a period of time in fixed amounts by agreement; or as a prorated portion of the benefits made to the designated recipient at the time the participant-spouse, as defined, is eligible to receive benefits, actually begins to receive benefits, or reaches earliest retirement age, if permitted by the plan, program, system, or fund (previously limited to the time the time the party actually begins to receive benefits and by appropriate domestic relations order).

Makes conforming changes throughout to refer to the plan, program, system, or fund for the benefits rather than the fund or plan for those benefits. Prohibits a court from requiring the administrator of the plan, program, system, or fund involved to make any payments or distributions to the nonparticipant spouse, except as the terms of the plan, program, system, or fund permit (previously prohibited until the party against whom the award is made actually begins to receive the benefits unless the plan permits an earlier distribution).

Provides that when the amount of the benefit payable by the plan, program, system, or fund to the participant-spouse is determined in whole or part by the length of time of the participant-spouse's employment, the marital portion is determined using the proportion of time the marriage existed simultaneously with the total time of the employment which earned the benefit subject to equitable distribution to the total amount of time of employment which earned the benefit subject to equitable distribution (clarified from existing language). Maintains existing language concerning the determination calculation. Requires the award to include costs of living adjustments and similar enhancements to the participant's benefit. Provides that if a court makes the award payable as a prorated portion of the benefits made to the designated recipient, as specified in subdivisions (a)(3) or (b)(3) as amended, and divides the marital portion of the benefit equally, the court is not required to determine the total value of marital benefits before classifying and distributing the benefits; however, neither party is prohibited from presenting evidence of the total value of any marital benefits or any benefits that are separate property of either spouse. Provides for a similar distribution where a pension, retirement, or deferred compensation plan, program, system, or fund, or applicable statute, limits or restricts the amount of the benefit subject to equitable distribution.

Requires the court to determine the award when the amount of the benefit payable by the plan, program, system, or fund is based on contributions and held in one or more accounts with readily determinable balances, by determining the amount in the account balance that is due to contributions made or earned during the marriage and before separation, together with the income, gains, losses, appreciation, and depreciation accrued on those contributions. Allows the court to determine the award based on the proportion of the time the marriage existed simultaneously with the employment which earned the benefit subject to equitable distribution to the total amount of time of employment, as in subsection (d) as amended, if sufficient evidence is not presented to the court to make the determination required. Either way, requires the award to be based on the vested and nonvested accrued benefit as of the date of separation, together with the income, gains, losses, appreciation, and depreciation accrued after the date of separation on the date-of-separation benefits. Prohibits the award from including contributions that can accrue or be made after the date of separation, or any income, gains, losses, appreciation, and depreciation accrued on those contributions. 

Maintains the award cap of 50% of the benefits the person against whom the award is made is entitled to receive as vested and nonvested pension, retirement, or deferred compensation benefits, except as previously specified. Maintains the provisions providing for the unpaid balance of the award to pass as previously specified in the event the person receiving the award dies.

Provides further specifications for when an award is made payable as a prorated portion of the benefits made to the designated recipient pursuant to subdivisions (a)(3) and (b)(3) as amended, regarding awards and allocations dependent on whether the pension, retirement, or deferred compensation plan, program, system, or fund permits the use of a "separate interest" approach in the domestic relations order.

Adds that whenever a pension, retirement, or deferred compensation plan, program, system, or fund does not automatically provide pre-retirement survivor annuity protection for the nonparticipant spouse, the court is required to order the protection for the nonparticipant spouse if permitted by the plan, program, system, or fund. Authorizes the court to equally allocate any fees assessed by the plan, program, system, or fund in order to process any domestic relations order or qualified domestic relations order.

Maintains the provisions concerning a court's avenues to require distribution of the award, now including by domestic relations order.

Clarifies that the statute and GS 50-21 apply to all vested and nonvested pension, retirement, and deferred compensation plans; programs; systems; or funds, including but not limited to the specified programs and plans provided, including uniformed services retirement programs, church plans, and charitable organization plans (previously specified certain plans but did not qualify that covered plans are not limited to those specified).

Provides for a court to enter a subsequent order to clarify or correct a prior order upon a plan, program, system, or fund deeming an order providing for distribution of its benefits unacceptable. 

Allows a claim to be filed, as specified, for an order effectuating the distribution of benefits provided in a valid written agreement, as defined in GS 50-20(d), whether or not a claim for equitable distribution has been filed or adjudicated. Authorizes a court to enter an order effectuating the distribution provided for in the valid written agreement.

Applies to distributions made on or after October 1, 2019.

Part III.

Amends GS 48-2-100, which prohibits state courts from exercising jurisdiction under the Chapter if, at the time an adoption petition is filed, a court of any other state is exercising jurisdiction substantially in conformity with the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA; Article 2, GS Chapter 50A), unless the other state court dismisses its proceeding or releases its exclusive, continuing jurisdiction prior to a grant of the adoption decree. Expands the jurisdiction of state courts under the Chapter to matters in which another state is exercising jurisdiction in substantial conformity with the UCCJEA and places custody of the adoptee in an agency, the petitioner, or another custodian expressly in support of an adoption plan that does not identify a specific prospective adoptive parent other than the petitioner. Makes clarifying changes.

Amends GS 48-2-205, concerning the recognition of adoption decrees from other jurisdictions. Provides that two persons (was, a man and a woman) who adopted a minor child in a foreign country while married to one another must readopt jointly, regardless of whether they have been since divorced. Adds that if two persons have adopted a minor child in a foreign country while married to one another and one of them has died, the survivor can petition for readoption and the court must issue a decree of adoption in the names of both the persons who adopted the minor child in a foreign country. Makes conforming changes to GS 48-2-301(c), concerning who can file adoption petitions.

Makes clarifying and organizational changes to GS 48-2-606, concerning adoption decrees.

Amends GS 48-3-303, concerning information which must be reported in preplacement assessments, to allow for the redaction from the assessment provided to a placing parent or guardian detailed information reflecting the prospective adoptive parent's income, expenditures, assets, and liabilities (was, income and financial account balances).

Amends GS 48-3-605 to now require an individual before whom a consent is signed and acknowledged to certify in writing that to the best of the individual's knowledge or belief, the parent, guardian, or minor to be adopted executing the consent has been advised of the right to seek the advice of legal counsel before executing the consent. Makes identical changes to the provisions regarding the execution of relinquishment set out in GS 48-3-702. Amends GS 48-3-606 and GS 48-3-703 to refer to the right to seek the advice of legal counsel, rather than to employ independent legal counsel, concerning requirements of the consent or the relinquishment executions.

Amends GS 48-9-102 concerning confidentiality and sealing of adoption records. Clarifies that the Department of Social Services, Division of Social Service (DSS), must permanently index and file the records, without review. Now requires DSS to transmit a report of each adoption and name change to the State Registrar or entity of another state responsible for issuing birth certificates within 40 days after receiving the report from the court (previously, no timeline specified).

Amends GS 48-9-109 to add that nothing in Article 9, Confidentiality of Records and Disclosure of Information, prevents an employee of a court, agency, or any other person from giving a file-stamped copy of a document to a person, or to the legal representative of a person, who has filed the document in an adoption proceeding.

Amends GS 1-597, regarding regulations for newspaper publication of legal notices and advertisements. Provides that whenever a notice or any other paper, document, or legal advertisement of any kind or description is required to be published in a jurisdiction outside of the state where legal notices are customarily published in specialized legal publications, any form of publication that meets the requirements for legal notices under the law of the locality where it is published is deemed sufficient under GS 1-597.

Amends GS 7B-200, regarding jurisdiction over cases involving juveniles alleged to be abused, neglected, or dependent to explicitly include in a court's exclusive original jurisdiction proceedings for the return of a juvenile to the state and proceedings to review a refusal or failure of the administrator of the Interstate Compact on the Placement of Children (the Compact; set forth in Article 38, GS Chapter 7B) in the state to forward a request for approval of a placement to the receiving state or to find that placement does not appear to be contrary to the interests of the child. Enacts GS 7B-3807 to provide for such judicial proceedings under the Compact. Provides for initiation of the review by motion in a pending action, as specified, or by petition. Requires the administrator to communicate an intention to refuse to forward a request for approval of a placement to the receiving state or to find that a placement does not appear to be contrary to the interests of the child, or for the matter to have been before the administrator for more than five business days, before a motion or petition is to be filed. Requires notice of the motion or petition for review to be given to the administrator by any reasonable means. Provides for venue in instances in which there is not a pending action as to the juvenile, as specified, in a court in the state. Deems this review to be an expedited proceeding, and requires the court to conduct a hearing within 10 days from the date of filing the petition or during the next term of court, as appropriate, and authorizes the court to order the administrator to take any action the administrator is permitted to take. 

Amends GS 150B-1 to exempt from the contested case provisions the Department of Health and Human Services in administering the Compact under Article 38, GS Chapter 7B.

Effective October 1, 2019.

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