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Divorce Based On Insanity

Unless one of the parties suffers from incurable insanity, the only ground for a divorce in North Carolina is a separation of at least one year. If the required time of separation has passed, there is no other defense to a claim for divorce.  That is why it is called an uncontested divorce.

If your spouse has “incurable insanity” the only way to divorce in our state is for the parties to be separated for a minimum of three years.  To be “incurably insane,” the spouse is “so mentally impaired that she does not understand what she is engaged in doing and the nature and consequences of her acts.” This definition is stated by the NC Court of Appeals in Scott v. Scott, 106 NC App. 606 (1992) aff’d, 336 NC 284 (1994).  If the parties are divorced after the three year waiting period, “the court shall require” the sane spouse to “provide for the care and maintenance” of the insane spouse for life if the insane spouse “has insufficient income and property” to support himself or herself.  If anyone who is incompetent is served with a lawsuit, the person’s legal guardian is responsible and if there is not one, the court will generally expect one to be named which requires another type of lawsuit called an incompetency proceeding.

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