North Carolina is known as an “absolute divorce” state, meaning that so long as a couple has been living separate and apart for at least a full year, either spouse can seek a divorce on that basis alone. This is far and away the most common way that couples divorce in this state.
There is, however, another basis for divorce in North Carolina. The General Statutes allow for divorces in the case of “incurable insanity.” Like with an absolute divorce, a divorce for incurable insanity is a no-fault basis for divorce. In order to obtain a divorce based on incurable insanity, all of the following elements must be satisfied:
- The couple must live separate and apart for three years. This is well beyond the one-year separation period for an absolute divorce.
- The reason they are living apart is due to the incurable insanity of one of the spouses.
- To demonstrate incurable insanity, a party must demonstrate that the incurably insane spouse has been institutionalized for three consecutive years or has been determined to be incurably insane.
- The insanity determination must come from two “reputable” physicians, who must focus on why they believe the mental condition to be “incurable”. One of these physicians must be “a staff member or the superintendent of the institution where the insane spouse is confined” while the other must be a “regularly practicing physician in the community wherein such husband and wife reside, who has no connection with the institution in which said insane spouse is confined.”
- In addition, the incurable insanity claim can also be supported by the testimony of a physician that has actually seen the incapacitated spouse. This includes a physician licensed by the state of North Carolina or a physician on staff of an accredited state medical school or state supported mental institution.
As you can gather from the aforementioned requirements, there are many tests that must be satisfied to obtain a divorce based on incurable insanity. In combination with the three-year separation requirement, incurable insanity is simply not a feasible basis to seek divorce. Especially when an absolute divorce only requires a one-year separation. Incurable insanity is therefore an extremely rare basis for divorce.
Contact New Direction Family Law
If you are considering a divorce, contact New Direction Family Law. We provide thorough legal advice and effective representation regarding any family law issue. Our attorneys have ten years of combined legal experience and have established a reputation as compassionate, yet tough-minded professionals. We will fight for your legal rights. Call New Direction Family Law today at (919) 719-3470 to schedule a consultation or visit us at our website.