If you or your soon-to-be ex have mental health issues—including substance abuse and other forms of mental illness—you may be wondering how that could play a role in your North Carolina divorce. It probably won't be the legal reason for your divorce, but it could potentially affect a judge's decisions about child custody, alimony, and property division.
No matter what state you live in, you must have "grounds" (reasons) to get a divorce. In the past, you needed to claim—and prove—that your spouse was to blame for the breakup of your marriage through misconduct like adultery, cruelty, or alcohol or drug abuse.
North Carolina, like many other states, no longer allows fault-based divorce. The state does allow you to file for divorce based on your spouse's "incurable insanity" (which is obviously not a form of misconduct), but you must meet very strict requirements, including:
(N.C. Gen. Stat. § 50-5.1 (2023).)
Not surprisingly, few people file for divorce based on incurable insanity, particularly since the other ground for divorce in North Carolina simply requires a one-year separation period.
It's worth pointing out that you may file for what's known in North Carolina as "divorce from bed and board" based on your spouse's excessive use of drugs or alcohol, if it has made your life intolerable. (N.C. Gen. Stat. § 50-7 (2023).) But despite its name, divorce from bed and board is not divorce (called "absolute divorce" in North Carolina). Divorce from bed and board is basically a form of court-ordered legal separation.
Whenever a judge makes decisions about child custody in North Carolina, the main goal is to protect a child's welfare and interests. North Carolina judges may consider "all relevant factors" when they're deciding what parenting arrangements would be best for the children. (N.C. Gen. Stat. § 50-13.2 (2023).)
Clearly, it might not be good for a child to live with or even spend much time with a parent who's suffering from serious mental illness or substance abuse. But just because a parent is dealing with mental health issues (including alcoholism or drug use), that doesn't necessarily mean the parent can't provide proper care for a child—so it shouldn't automatically rule out parenting time or visitation. Instead, the judge will look closely at the specific circumstances to decide how that the parent's condition might affect the child's well-being.
As with decisions about which parent will have primary physical custody, judges will order visitation (parenting time) based on what would be in the child's best interests. These days, most judges believe that it's usually good for children to have contact with both parents after divorce.
That means that when a parent's mental illness or substance abuse could endanger a child during visitation, the judge will typically try to design a plan that will protect the child while still allowing an ongoing parent-child relationship. For example, the judge may:
N.C. Gen. Stat. § 50-13.2(b2), (e) (2023).)
If someone reports suspected child abuse or neglect, Child Protective Services will investigate and may open a dependency case with the juvenile court. This is a completely separate proceeding from a custody dispute in family court.
When juvenile judges find that parents have been mistreating children because of substance abuse or other mental health problems, those parents will typically have a chance to get treatment for their condition. But if those efforts fail, the parents could permanently lose their parental rights.
Juvenile judges may terminate parental rights if they find, based on clear and convincing evidence, that:
(N.C. Stat. § 7B-1111 (2023).)
When a judge is deciding whether it would be fair to award alimony in a North Carolina divorce—and if so, how much the support payments should be and how long they should last—the judge must consider a long list of factors, including:
(N.C. Stat. §§ 50-16.1A, 50-16.3A (2023).)
These factors could work for or against spouses with mental health issues. For instance, a judge may decide that a spouse with severe mental illness needs alimony. But in a different scenario, a judge might decide not to award alimony to a spouse who refuses to get treatment for serious substance abuse.
Although North Carolina follows the "equitable division" rule for dividing property in divorce, the law calls for a couple's property to be split equally unless that wouldn't be fair. Judges must consider a number of factors when they're deciding what would be fair, including the physical and mental health of both parties. (N.C. Stat. § 50-20 (2023).)
In practice, this means a judge might decide that it would be fair to award a greater share of the couple's property to a spouse whose serious mental illness makes it hard to earn a living. But mental health would only be one of many factors that the judge would need to consider.
Just because you're dealing with mental health issues in your upcoming divorce, that doesn't mean it's impossible for you and your spouse to work out a settlement agreement and take advantage of the cost-saving benefits of an uncontested divorce.
Whether you've reached an agreement on your own or in divorce mediation, it would be wise to have a family law attorney at least review the agreement to make sure that your rights are protected, particularly in light of complications that can arise when one spouse has substance abuse or mental health problems. And if you expect a contested divorce with court battles over any of the issues in your case, it's even more important to have an experienced divorce lawyer representing your interests.