In North Carolina, to obtain an absolute divorce, the parties have to be separated for at least one year and at least one of the parties must be a resident of North Carolina for six months prior to filing. Of course, there may be complications that arise when pursuing a divorce that can alter the procedure a bit. One of these complications is when one spouse is declared incurably insane.
Living with a romantic partner who has slowly spiraled to the point of needing a commitment to a mental health facility is difficult enough. Maintaining your marriage is virtually impossible when your spouse is unable to participate. North Carolina General Statute § 50-5.1 governs the grounds for divorcing a spouse with incurable insanity.
Proving you meet the grounds for divorce
While most couples only have to live apart for a year to obtain an absolute divorce, a couple where one party is incurably insane is required to live completely separate and apart for at least three years before the sane spouse qualifies to file. If your spouse is released to your custody for a period to see if you can put your marriage back together, that time will not count as cohabitation if he or she has to be recommitted.
Another hinge in proving that you meet the grounds for absolute divorce in this situation is to actually show that your spouse suffers from incurable insanity by showing that either he or she:
- Has been confined to a mental health institution for three consecutive years before filing;
- Is not confined, however was examined at least three years prior to filing for divorce and was found to be incurably insane; and/or
- Is not confined, however was adjudicated to be mentally insane more than three years before filing, and has never been declared sane since that time.
For purposes of obtaining an absolute divorce under one or two above, the diagnosis can only be made by licensed physicians; one who works for the facility your spouse is confined to and another who holds no connection to the facility. Number three only requires the testimony of two physicians, oner of whom is a psychiatrist.
Your spouse’s best interests
Because your spouse’s mental status renders him or her without legal capacity to make decisions, your spouse’s interests will need to be represented by a legal guardian or an appointed guardian ad litem who will investigate the facts and allegations contained in your action for divorce. If that investigation shows that you contributed to your spouse’s mental condition, the court may deny your request for divorce.
Planning for the future
It’s an unfortunate fact that your difficult situation will not become instantly easier just because you are no longer legally tethered to a spouse who suffers from incurable insanity. You will be able to shed some of the stress that you have lived under during your marriage, however you may not be able to sever all ties and put the marriage behind you entirely.
Should your spouse lack the financial ability to provide for his or her care and maintenance, you will be required under your divorce decree to support your spouse for the duration of his or her lifetime. Just as with alimony, certain factors will be considered in the amount of the award, and you may also be subject to actions for modification of the support amount if any changes to your former spouse’s care warrant one.
There are additional methods under the statute by which your spouse may qualify as incurably insane so that you may obtain a divorce. Our compassionate Charlotte family law attorneys at Epperson Law Group, PLLC can advise you on these diagnoses more in depth during your consultation. To speak with one of our seasoned attorneys, schedule your confidential consultation in our Charlotte, Boone or Weddington office by calling 704-321-0031, or by reaching out to us through our contact page.