Mental Health Issues and Divorce in North Carolina

Learn how mental health issues can affect divorce in North Carolina.

By , Retired Judge

Mental health concerns can play an important role in divorce and other family law matters. This article addresses how mental health issues, such as mental illness and substance abuse, may affect divorce in North Carolina. If you have questions about this topic, consult a local family law attorney for advice.

Can You Get a Divorce Based on Mental Health Issues?

No matter what state you live in, you must have "grounds" (reasons) to get a divorce. Today, states will allow a divorce where neither spouse claims that the other did anything wrong. These are known as "no-fault" divorces. In North Carolina, for example, spouses can get a divorce simply if they've lived separate and apart for a year.

But many states still allow "fault-based" divorce, where one (or both) of the spouses claims that the other is responsible for the marriage's breakdown. Some common fault grounds are:

  • adultery
  • extreme cruelty (mental or physical)
  • drug or alcohol abuse, and
  • incurable insanity.

Insanity and Substance Abuse Are Grounds for Divorce

While not all states allow insanity as a ground for divorce, North Carolina does. The law says that if one of the spouses is incurably insane (not just mentally ill), and the couple have lived separate and apart for three consecutive years, the sane spouse can sue for divorce.

North Carolina also allows divorce on the ground of a spouse's excessive use of alcohol or drugs. The alcohol or drug abuse has to be so bad that continuing on with the marriage would be intolerable for the other spouse.

Mental Incapacity Can Lead to an Annulment

It's important to understand that, ordinarily, the law sees marriage as a contract. For it to be valid, you have to be able to understand what you're doing when you enter into it. In North Carolina, if you lacked this ability when the marriage took place, you could later seek an annulment, which voids the marriage (as if it never happened).

If someone had severe mental illness and that condition made him or her incapable of voluntarily consenting to the marriage, the court could grant an annulment. An example of this might be where a person suffering from schizophrenia was delusional at the time the marriage took place.

Likewise, if a person was significantly under the influence of drugs or alcohol, that individual may not have been capable of freely consenting to the marriage and can later seek an annulment.

Mental Health Issues Can Affect Custody Rights

When a court determines custody, the main goal is to protect a child's welfare, so mental health concerns can obviously play a big role in a judge's decision.

The law gives courts a lot of leeway when it comes to custody. Sometimes, this could mean granting custody to both parents (joint custody). Or, if the court doesn't believe joint custody is appropriate, it can award custody to one parent and grant visitation (parenting time) rights to the other.

Obviously, if a parent is suffering from severe mental illness or substance abuse, a court must determine if—and how—that condition will affect the child. The fact that a parent may be mentally ill doesn't automatically mean that he or she isn't able to properly care for a child; a judge will have to look carefully at the specific circumstances of each case. Again, it comes down to the effect of the illness on the parent and the child's well-being.

A Parent's Mental State May Also Impact Visitation

Generally speaking, a parenting (visitation) plan describes in detail when a child will visit with each parent, including weekends and holidays. It also tries to address potential problems, such as how the parents will handle drop-off and pick-up. Mental health issues will also affect a parenting plan.

The courts want to ensure the child's safety, as much as possible. If a parent has severe mental illness or substance abuse problems, the court will try to design a visitation plan that protects the child. For example, North Carolina law provides that, as a condition of custody or visitation, a parent might have to agree not to consume alcohol.

If the court feels that a parent's mental illness or substance abuse is so bad that it wouldn't be safe to leave the parent alone with the child at all, it can order supervised visitation. In this situation the parent can only see the child in the presence of a third person, usually a grandparent, mutual friend, or a social services agency.

The Role of Mental Health in Terminating Parental Rights

In some extreme cases, a court may find that a parent is unfit to raise a child, which could result in terminating parental rights. This is a drastic action, and the court will only take it as a last resort.

In North Carolina, one of the reasons for which a court can terminate parental rights is if the parent isn't capable of providing for the child's proper care and supervision, and there's a "reasonable probability" that the parent's incapability will continue for the foreseeable future.

The law specifically acknowledges that the parent's inability to provide the proper care may result from substance abuse or mental illness. The court system (including social services) will usually give a parent the chance to obtain help for these conditions, and it's only when this fails that a judge will finally terminate parental rights.

For more information see North Carolina law N.C.G.S.A. § 7B-1111.

Alimony and Distribution of Marital Property

North Carolina law allows the courts to determine the amount of alimony (spousal support) to award, and how long alimony will be paid. One of the factors that courts must consider is the spouses' mental and emotional condition.

The law also says that if one spouse starts a divorce, and the other spouse is insane and doesn't have sufficient income or assets to provide for his or her own care, the one seeking the divorce must provide for that care.

Also, when it comes to dividing marital property during a divorce, the court must look at the spouses' physical andmental health, when making a decision.

Once a court looks at all of these issues, it will divide property and award alimony in way that is equitable (fair). If you have questions about your own case, please contact a local family law attorney for advice.

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