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Sanity and Insanity When it Comes to

Granting a Divorce

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.

The Impact

A divorce is a ruling on the legal relationship between you and your spouse. A divorce makes a critical difference in many important situations, such as health insurance, the way you file tax returns, and retirement and social security benefits, to name a few. A divorce also controls when you have the right to file claims for alimony and marital property division, and your rights to jointly owned property, including survivor rights, just to name a few.

What About Your Sanity?

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.

If You’re Sane, Have You Really Separated?

Though they are rare, there are cases where it was not obvious the parties have been separated for one year. Sometimes couples who separate date each other again, or perhaps they live together again before separating permanently. There is no bright line rule about what counts as a true separation. Years ago, the mere fact of sexual intercourse started the clock over again, and the one-year period would begin after the date the parties had intercourse. This discouraged couples from trying to work things out, so the law changed. Now, the law says that a judge should make this decision (of whether the parties were separated) on a case-by-case basis looking at the big picture in what the statute calls “totality of the circumstances.” An isolated incident of sexual intercourse between the parties, by itself, does not automatically mean their one-year time period should start all over again.

Other Divorce Matters

Each state has its own residency requirements for divorces, and any requirement of separation. In North Carolina, one spouse must live in the state for at least six months before the divorce is filed, and the divorce permanently terminates the right to file certain marital claims. If you are served with a lawsuit for a divorce, contact an attorney promptly for advice about the divorce as well as whether you should file any counterclaims. Failure to properly respond to a complaint within a deadline may mean you permanently lose those rights.

See NC Gen. Stat. §50-5.1 and 50-6.


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