GENERAL ASSEMBLY OF NORTH CAROLINA
1991 SESSION

CHAPTER 610
HOUSE BILL 417

AN ACT TO AUTHORIZE AN ACTION UNDER THE CHAPTER OF LAW CONCERNING DIVORCE AND ALIMONY TO PROTECT THE PROPERTY OF AN INCOMPETENT SPOUSE BUT TO PREVENT THE ENTRY OF A DIVORCE DECREE ON BEHALF OF THE INCOMPETENT AS RECOMMENDED BY THE GENERAL STATUTES COMMISSION.

Whereas, the decision to obtain a divorce is a personal decision and one that should only be made by the individual involved; and
Whereas, an incompetent spouse may for religious or other personal reasons have objections to the entry of a divorce on his or her behalf; and
Whereas, the General Assembly recognizes a need to protect the property rights of an incompetent spouse; Now, therefore,

The General Assembly of North Carolina enacts:

Section 1.  Chapter 50 of the General Statutes is amended by adding a new section to read:
"§ 50-22. Action on behalf of an incompetent.
A general guardian for an incompetent spouse may commence, defend or maintain any action authorized by this Chapter; however, the court shall not enter a decree of absolute divorce in such an action filed by the guardian on behalf of the incompetent spouse.  As an exception to G.S. 50-21, the court may order equitable distribution on behalf of an incompetent spouse without entering a decree of divorce after the parties have lived separate and apart for a period of one year.  Provided, however, that the competent spouse may seek and obtain a divorce from the incompetent spouse upon showing basis for the same."
Sec. 2.  G.S. 50-21(a) reads as rewritten:
"(a)	At any time after a husband and wife begin to live separate and apart from each other, a claim for equitable distribution may be filed, either as a separate civil action, or together with any other action brought pursuant to Chapter 50 of the General Statutes, or as a motion in the cause as provided by G.S. 50-11(e) or (f).  During the pendency of any such action for equitable distribution, discovery may proceed, and the court may enter temporary orders as appropriate and necessary for the purpose of preventing the disappearance, waste, or destruction of marital or separate property or to secure the possession thereof.
A judgment for an equitable distribution shall not be entered prior to entry of a decree of absolute divorce, except as provided in G.S. 50-22 and except for a consent judgment, which may be entered at any time during the pendency of the action.
Real or personal property located outside of North Carolina is subject to equitable distribution in accordance with the provisions of G.S. 50-20, and the court may include in its order appropriate provisions to ensure compliance with the order of equitable distribution."
Sec. 3.  This act becomes effective October 1, 1991.
In the General Assembly read three times and ratified this the 9th day of July, 1991.

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James C. Gardner
President of the Senate

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Daniel Blue, Jr.
Speaker of the House of Representatives