Assisted Living and Divorce

My husband has suffered with MS 25 out of the 27 years of our marriage.  He was recently placed in an assisted living facility in Oct. 7 2004.  We have not been husband in wife for 6 years due to sexual dysfunction from his MS.
Now that he is in an assisted living facility with cognitive memory loss and impaired reasonability why can’t I file a separation with the courts having to appoint him a lawyer so I can live life finally without fear of being sued.  I am only 50 yrs old and he is 52.  How does the law read and play into this?
I am going to assume you live in North Carolina.  Divorce laws vary considerably from state to state so if you live elsewhere don’t rely on this answer.
There is no procedure for “filing” a separation in North Carolina.  I get about 5-10 calls per week from people who want to do this though.  North Carolina allows for a no-fault divorce based on spouses living “separate and apart” for one year.  Many couples decide to separate and agree on:
  • how they will divide the marital property
  • how to divide the marital debt
  • how the children will be cared for
  • whether there will be any alimony

Once there is an agreement on those points, the parties put their agreement in writing.  That writing is a separation agreement.  A separation agreement does not have to be “filed” to be valid, but sometimes separation agreements are recorded in the county Register of Deeds office.

If the the spouses cannot agree, they can still separate.  This means someone has to leave the marital residence.  If spouses still live under the same roof, even if they don’t sleep in the same room, that is not considered living separately.

As of October 7, 2004, you were living separate from your husband.  As far as being sued, I’d have to know by whom and for what.  Until the end of marriage each spouse owes the other a duty to support.  Sometimes health providers try to collect from one spouse to cover treatment costs for the other, but this is fairly rare.  After the marriage, a dependent spouse may get support through alimony.  The amount of alimony awarded depends on the needs of the dependent spouse and the ability of the supporting spouse to pay.

A last word.  All this is general advice based on the limited information you gave me.  This matter is too complicated for you to try to handle on your own.  You need to hire a lawyer to guide you.