Christian Family Law Association

NORTH CAROLINA:

2013 Legislative Change

N.C. Gen. Stat. § 50-16.6(b) provides that “Alimony, postseparation support, and counsel fees may be barred by an express provision of a valid separation agreement, premarital agreement, or marital contract made pursuant to G.S. 52-10(a1) so long as the agreement is performed.”

N.C. Gen. Stat. § 52-10(a1) provides that, “A contract between a husband and wife made, with or without a valuable consideration, during a period of separation to waive, release, or establish rights and obligations to post separation support, alimony, or spousal support is valid and not inconsistent with public policy. A provision waiving, releasing, or establishing rights and obligations to post separation support, alimony, or spousal support shall remain valid following a period of reconciliation and subsequent separation, if the contract satisfies all of the following requirements: (1) The contract is in writing. (2) The provision waiving the rights or obligations is clearly stated in the contract. (3) The contract was acknowledged by both parties before a certifying officer. A release made pursuant to this subsection may be pleaded in bar of any action or proceeding for the recovery of the rights released.”

Comment

This new legislation, enacted June 13, 2013, raises a number of interesting questions about the effect of reconciliation and subsequent separation on alimony waivers and contractual provisions establishing postseparation support and alimony. Under prior law, reconciliation of spouses voided all executory provisions of separation agreements and court orders related to spousal support, and a subsequent separation did not revive those provisions. That appears to be no longer the law in North Carolina. Now, if a spouse signs a waiver of spousal support, even during the marriage as long as it is executed during a period of separation, that spousal support waiver lasts forever despite a reconciliation and subsequent separation that may happen many years later in the marriage when financial circumstances may be dramatically different than when the spousal waiver was agreed to initially. This legislation is going to raise a number of issues related to fairness as circumstances can substantially change between the first agreement entered into following separation and the claim for postseparation support and alimony that exists following a reconciliation and subsequent separation. It is unclear what effect a provision in the agreement that limits the waiver in the event of a reconciliation and subsequent separation might have. At some point, the appellate courts will need  to determine whether these spousal support provisions become modifiable if the separation agreement is incorporated into a court order or judgment, despite the provisions in the new law. Attorneys should probably advise their clients not to sign an agreement that includes any type of spousal support waiver unless they fully understand the legal consequences of their signing. It may be better to advise a supporting spouse to have a court enter an order for spousal support so that reconciliation and subsequent separation does not revive the award of spousal support, but rather, a new action would be required to set spousal support based on the circumstances existing at that time.

FEDERAL LEGISLATION: