Short Answer

In North Carolina, a spouse can get an absolute divorce after living separate and apart for at least one year and if at least one spouse has resided in the state for six months. File in District Court and serve the other spouse; if the other spouse has dementia, the court will ensure a guardian or guardian ad litem is involved to protect their rights. If separation cannot be achieved safely or voluntarily, a divorce from bed and board (a judicial separation) may be used to establish lawful separation and related relief. Preserve claims for property division and support before the divorce is entered.

Understanding the Problem

You want to know how your parent in North Carolina can move forward with a divorce later in life when the other spouse has dementia and will not cooperate. The single decision is whether and how your mother can start and complete a divorce, including how to separate, serve papers, and secure financial support. One key fact: your mother currently pays all household bills alone.

Apply the Law

North Carolina allows an absolute divorce after a continuous one-year separation under separate roofs and a six-month residency by at least one spouse. Cases are filed in the District Court. When a spouse cannot manage their affairs because of dementia, the court ensures proper service and participation through a guardian or a court-appointed guardian ad litem so the case can proceed fairly. If a spouse refuses to separate or leave the home, a divorce from bed and board (a judicial separation) can be sought based on fault grounds to lawfully establish separation and obtain related relief. Claims for alimony and equitable distribution of property must be filed before the divorce is granted.

Key Requirements

• Residency: At least one spouse has lived in North Carolina for six months before filing.
• One-year separation: Spouses must live in different residences for a continuous year with the intent to end the marriage.
• Proper filing and service: File in District Court; serve the other spouse. If the spouse is incompetent, the court ensures representation through a guardian or guardian ad litem.
• Preserve financial claims: File claims for postseparation support, alimony, and equitable distribution before the divorce judgment is entered.
• Judicial separation option: If voluntary separation is not possible, seek divorce from bed and board to establish lawful separation and related protections.

What the Statutes Say

• North Carolina Gen. Stat. § 50-6 (Absolute divorce) – One-year separation required for divorce.
• North Carolina Gen. Stat. § 50-8 (Residency) – At least one spouse must have six months’ residency before filing.
• North Carolina Gen. Stat. § 50-7 (Divorce from bed and board) – Judicial separation based on fault grounds.
• North Carolina Gen. Stat. § 1A-1, Rule 17 (Guardians ad litem) – Representation for incompetent adults in civil actions.

Analysis

Apply the Rule to the Facts: If your mother has lived in North Carolina for at least six months, she meets residency. To get an absolute divorce, she must live in a separate residence for a full year; moving to assisted living can start that clock. Because her spouse has dementia, the court will require service on a guardian (if already appointed) or appoint a guardian ad litem so the case proceeds fairly. Given she pays all bills alone, she should file for postseparation support, alimony, and equitable distribution now and consider a divorce from bed and board if she needs a court-ordered separation and protections.

Process & Timing

1. Who files: Your mother. Where: District Court in the North Carolina county where she or her spouse resides. What: Complaint for Absolute Divorce (plus claims for equitable distribution, postseparation support, and alimony); Civil Summons (AOC-CV-100); Domestic Civil Action Cover Sheet (AOC-CV-750). When: File financial/support claims as soon as separation begins; file for absolute divorce after a full year of living apart.
2. Serve the spouse by sheriff or certified mail. If the spouse is incompetent, service is made on the spouse and their guardian, or the court appoints a guardian ad litem to accept service and participate. Request temporary hearings for postseparation support and to preserve property; timing varies by county.
3. After one year of separation, move for an absolute divorce hearing; the court enters a divorce judgment. Equitable distribution and alimony continue to resolution if not already settled; the final orders divide property (including the two homes) and set any support.

Exceptions & Pitfalls

• Living in the same home does not count as “separate and apart”; cohabiting, even briefly, can restart the one-year clock.
• File alimony and equitable distribution before the divorce judgment; waiting until after divorce usually waives those claims.
• Service and representation: when a spouse has dementia, expect guardian or guardian ad litem involvement; improper service can delay your case.
• Divorce from bed and board is a judicial separation, not a final divorce; you still need the one-year separation for an absolute divorce.
• If a spouse dies before the court enters the divorce, the divorce case ends and property issues shift to estate procedures.

Talk to a Family Law Attorney

If you’re dealing with a late-in-life divorce where a spouse has dementia and won’t contribute to care or expenses, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.