When a North Carolina couple has been separated for a year and then the defendant spouse becomes incompetent from an injury that happened after the separation, can the plaintiff still get a no-fault divorce under § 50-6, or is the only path the longer three-year incurable-insanity statute under § 50-5.1?

Plain-English summary

Guilford County had a divorce case with a difficult timeline. A husband and wife separated on August 7, 1984. Four days later, on August 11, the husband was in a motorcycle accident that left him with massive head injuries that "believed to be of a permanent and debilitating nature." The court appointed a guardian ad litem to represent him. The wife filed for divorce a year later, on August 19, 1985, under N.C.G.S. § 50-6, the one-year-separation no-fault statute.

The clerk of court asked the AG whether the case could proceed under § 50-6 or whether the wife had to instead wait two more years and use § 50-5.1, the incurable-insanity statute that required three years of separation "by reason of" insanity.

Assistant Attorney General Norma S. Harrell concluded the wife could proceed under § 50-6.

The reasoning turned on the words "by reason of" in § 50-5.1. The North Carolina Supreme Court had construed that phrase strictly in Mabry v. Mabry, 243 N.C. 126 (1955), and again in Moody v. Moody, 253 N.C. 752 (1961). § 50-5.1 was meant for cases where the cause of the separation was the spouse's incurable insanity. The separation between the Guilford County couple was a normal-life separation that happened to be followed days later by an injury. The injury did not cause the separation; the separation predated the injury. § 50-5.1 by its terms therefore did not apply.

That left § 50-6. The defense lawyer or guardian ad litem might have argued that the Moody dicta about the need for both spouses to be "competent throughout the entire period of the separation" barred a § 50-6 divorce too. The AG considered that and rejected it. Several reasons:

1. Not every brain injury produces incompetence in the legally relevant sense (the Lawson / Moody standard requires that the defendant "not understand what he or she is engaged in doing, and the nature and consequences of the act"). The mere fact that a guardian ad litem was appointed did not establish that the defendant was incompetent at that level.

2. Moody was twenty-five years old and the other major cases even older. The legislature had moved toward true no-fault divorce since then.

3. Robert Lee's leading treatise (Lee on North Carolina Family Law) criticized Moody and argued that a sane plaintiff should be able to obtain a one-year-separation divorce from a spouse who became insane.

4. The result of denying the divorce would be perverse: a sane plaintiff would be permanently bound to an incompetent spouse if separation predated the incompetence, but could obtain divorce if the incompetence predated the separation. Nothing in the statutory text required that asymmetry.

So the AG's recommendation: the divorce should be allowed to proceed under § 50-6.

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. North Carolina's divorce statutes have been amended several times since 1986. The "incurable insanity" statute (§ 50-5.1) has been restructured and the language modernized. The one-year separation statute (§ 50-6) is still the standard no-fault path, but the procedural requirements (filing fees, residency, service on incompetent defendants, guardian ad litem appointments) have evolved. A modern divorce case involving an incompetent spouse should be analyzed against the current statutes and the current Rules of Civil Procedure rules on incompetent parties (Rule 17).

Background and statutory framework

North Carolina's divorce law has historically been more restrictive than that of many states. Until the mid-twentieth century, divorce required proof of fault. As "no-fault" divorce spread across the country, North Carolina adopted a one-year-separation ground (§ 50-6). This is now the practical workhorse for most North Carolina divorces.

The incurable-insanity ground (§ 50-5.1) is the historical residue of an older era's effort to address marriages disrupted by mental illness. It required a longer separation period (three years) and proof that the separation was "by reason of" the defendant's incurable insanity. It was meant for the situation where a spouse had been institutionalized and the other spouse wanted to end the marriage but could not allege ordinary fault. After no-fault divorce became available under § 50-6, the incurable-insanity ground became largely redundant for plaintiffs who could wait.

The 1986 opinion sits at the intersection of these two grounds. The Supreme Court in Lawson, Mabry, and Moody had read § 50-5.1 (or its predecessor) as the exclusive remedy when the separation arose from a spouse's incompetence. The AG had to figure out what to do when the incompetence came after the separation. The textual answer (the separation was not "by reason of" the incompetence) and the policy answer (avoid trapping plaintiffs in marriages they had functionally left) both pointed toward allowing § 50-6.

The opinion is also a clean illustration of the AG's role in supplying clerks with workable answers to legal questions. The clerk of superior court in Guilford County did not need a treatise; he needed an answer. The AG gave one with full statutory and case-law support, and the divorce could proceed.

Common questions

What if the defendant's brain injury did meet the legal standard for incompetence to such a degree that the defendant "did not understand what he or she was engaged in doing"?

The opinion implies the answer would still be § 50-6 because the separation predated the injury. The incurable-insanity statute is keyed to the separation being caused by the insanity, not to whether the defendant was incompetent during all or part of the separation.

What protections did the incompetent defendant have in the divorce action?

The guardian ad litem appointed under the predecessor of modern Rule 17 represented the defendant's interests during the divorce. The GAL could and would contest any allegations the GAL believed were unsupported, and the GAL could appeal an adverse decision. The divorce was therefore not a default proceeding even though the named defendant could not personally participate.

Could the plaintiff also seek property distribution or alimony in such a divorce?

The opinion addressed only the divorce itself. Equitable distribution (added to NC law in 1981 in G.S. § 50-20) and alimony (then governed by § 50-16.1 et seq., now reorganized into § 50-16.1A and following) had their own procedural requirements when one spouse was incompetent. The guardian ad litem would represent the defendant's interests in those proceedings as well.

Does the date of separation matter if both spouses had recurring conflicts?

The "date of separation" for § 50-6 purposes is the date the spouses begin living separate and apart with at least one of them having the intent to remain separated. Reconciliation can reset the clock. The 1986 opinion described a clean separation, no reconciliation between separation and injury; a more complicated factual pattern would require its own analysis.

Source

• Landing page: https://ncdoj.gov/opinions/divorce-incompetency-of-defendant/

Citations

• N.C.G.S. § 50-5.1 (divorce based on three-year separation by reason of incurable insanity)
• N.C.G.S. § 50-6 (divorce based on one-year separation)
• Lawson v. Bennett, 240 N.C. 52, 81 S.E.2d 162 (1954)
• Mabry v. Mabry, 243 N.C. 126, 90 S.E.2d 221 (1955)
• Moody v. Moody, 253 N.C. 752, 117 S.E.2d 724 (1961)
• Lee on North Carolina Family Law § 72 (1985 Supp.)

Original opinion text

Requested By:

James Lee Knight Clerk of Superior Court Guilford County

Question:

May a plaintiff pursue a divorce option under N.C.G.A. 50-6 where, after the parties have separated, the defendant sustained injuries bringing into question this competency?

Conclusion:

Yes.

This inquiry relates to a divorce action instituted on August 19, 1985, pursuant to N.C.G.S. 50-6. Plaintiff wife and defendant husband separated on August 7, 1984. On August 11 of that year, defendant husband was involved in a motorcycle accident in which he sustained massive head injuries. A guardian ad litem was appointed to represent defendant husband in the divorce proceeding. The application for appointment of a guardian stated that the injuries in question were "believed to be of a permanent and debilitating nature" and that defendant husband was "believed to be a person incapable of handling his own affairs. . . ." The order similarly stated defendant husband "is a person believed to be incapable of conducting his own affairs and is entitled to the appointment of a guardian ad litem."

The question arising from these facts is whether a plaintiff is entitled, under such circumstances, to proceed under N.C.G.S. 50-6? Alternatively, does the fact that the defendant sustained injuries bringing into question his competency after the date of separation, before which there was no question or issue of competency, require the plaintiff wife to proceed under N.C.G.S. 50-5.1?

North Carolina now has only two grounds for divorce. Under N.C.G.S. 50-6, a divorce may be obtained "when the husband and wife have lived separate and apart for one year" and other requirements are met. Under N.C.G.S. 50-5.1, the husband and wife must "have lived separate and apart for three consecutive years, without cohabitation," and they must be "still so living separate and apart by reason of the incurable insanity of one of them" at the time of the divorce proceeding. (Emphasis added.)

North Carolina appellate courts have considered the issue of divorce from an insane or incompetent spouse on several occasions. In Lawson v. Bennett, the Supreme Court ruled that a plaintiff husband could not obtain a divorce based on a two-year separation from an insane spouse where the insanity arose sometime prior to the separation, the court's theory being that the General Assembly had provided a specific remedy to be followed in the event that one spouse was insane and that that remedy was exclusive. There was some evidence there to indicate that the defendant was incurably insane or at least that the prospects for recovery or a cure were not good. 240 N.C. 52, 81 S.E.2d 162 (1954). Mabry v. Mabry required the court to construe the language in the predecessor version of the statute granting divorce because of a separation resulting from the incurable insanity of one spouse, then requiring that the defendant be confined for five consecutive years immediately preceding the divorce action. However, the court there indicated that the right to a divorce under this statute "is bottomed on the ground of incurable insanity, and such insanity must have been the reason for the separation of the parties." 243 N.C. 126, 129, 90 S.E.2d 221 (1955). In Moody v. Moody, the Supreme Court considered a case involving an action brought on the grounds of a two year separation against a defendant husband who had sustained brain injuries on the very day of the separation. The court concluded that the separation at issue in Moody, "took place because of the brain injury and not by reason of mutual consent." 253 N.C. 752, 757, 117 S.E.2d 724 (1961). Under those circumstances, the provision for divorce "by reason of" the incurable insanity of the defendant was the exclusive remedy, and plaintiff was not entitled to a divorce based on a two-year separation.

Both the language of N.C.G.S. 50-5.1 and prior case law, based on predecessor statutory provisions, establish that plaintiff could not proceed under N.C.G.S. 50-5.1. Defendant's incompetence is a result solely of injuries sustained in an accident occurring after the parties had separated. The separation clearly was not "by reason of" defendant's incompetence. As previously indicated, the Supreme Court in Mabry, supra, clearly indicated that the predecessor of 50-5.1 applied only where the separation resulted from or was occasioned by the incompetence and, in Moody, stated on more than one occasion that the separation arose by reason of the defendant's incompetence. It thus appears that the provisions of G.S. 50-5.1 are not available to a plaintiff to obtain a divorce from an incompetent spouse where the separation occurred prior to the onset of the incompetence. (One might also argue that a statute relating to divorce from an incurably insane defendant is irrelevant in the situation in which an incompetence is caused by a brain injury, but the Supreme Court appears to have construed the language of the predecessor to N.C.G.S. 50-5.1, which also referred to the defendant's incurable insanity, as encompassing an incompetence caused by a brain injury. See Moody v. Moody, supra.)

There may yet be some questions about the availability of a divorce based on a year's separation to a plaintiff who separated from a defendant prior to the defendant's incompetence. In Moody the Supreme Court quoted language from an A.L.R. annotation indicating that a divorce based on separation for a specific period of time may not be obtained unless both spouses were competent throughout the entire period of the separation. The court also noted that in cases of separation arising by reason of mental incompetence not amounting to incurable insanity, the separation would not be ground for divorce. See Moody, 253 N.C. at 756.

Despite the existence of some basis for suggesting that plaintiff may not have a remedy, there are several reasons why, in the circumstances posed here, plaintiff should be allowed to pursue her divorce action. First, not every brain injury resulting in incompetency to manage one's affairs constitutes an impairment "to such extent that defendant does not understand what he or she is engaged in doing, and the nature and consequences of the act," the standard for determining a defendant's ability to have the mental capacity and intent necessary to bar an action based on separation. Moody, 253 N.C. at 756, citing Lawson v. Bennett, supra. Secondly, Moody is twenty five years old, and the other major cases in this area are even older. While some of them included dicta relating to the situation in which the incapacity is incurred after the separation is initiated, none of them turned on that issue. Lee, in his treatise on North Carolina Family Law, expresses a strong opinion that a sane plaintiff may seek and obtain a divorce from an insane defendant under N.C.G.S. § 50-6, pointing out the strong criticism leveled at Moody and the significant changes in the nature of divorce based on a year's separation with the recent moves toward a pure no-fault divorce aimed at ease of terminating a marriage after the parties have decided to live apart. 1 Lee on Family Law, § 72, 1985 Supp. It would be ironic indeed to conclude that a plaintiff was forever bound in marriage to an incompetent spouse if the parties separated prior to the defendant's becoming incompetent while permitting plaintiffs to obtain divorces from insane spouses where the incompetence occurred prior to any separation. Nothing in the language of the statutory provisions require such a result, and in the absence of a definitive decision based on a factual situation in which the incompetence occurred after the separation and under the divorce provisions as amended by the General Assembly and interpreted in recent years by you appellate courts, a plaintiff should be able to proceed under N.C.G.S. § 50-6 to obtain a divorce from an incompetent spouse if the incompetence arose after the date of separation.

Lacy H. Thornburg
Attorney General

Norma S. Harrell
Assistant Attorney General