The duty for the supporting spouse to pay the dependent spouse money after a determination of alimony or post separation support is not something that can be written off by being adjudicated incompetent. If that were permitted, then every single person who has been declared a supporting spouse would just go to the courthouse and declare that they are incompetent to avoid paying. This protects the dependent spouse from being deprived of money that they were otherwise entitled to.
Incompetence for judicial purposes is when a court determines that a person lacks the capacity to manage the adults own affairs or to make or communicate important decisions concerning the adult’s person, family, or property whether the lack of capacity is due to some sort of mental illness or disease (NCGS §35A-1101 (7)). But what happens when a family member of the incompetent declares your spouse mentally incompetent? Do you lose all rights to the estate?
The answer is no. You can still file a petition with the clerk of court to be granted spousal support from the incompetent spouse’s estate. In order to do that though, you must show the court that the incompetent’s estate has enough money to take care of the incompetent with some money left over. If there is any extra money left in the incompetent spouses’ estate, then the clerk of court can determine how much the spouse that is seeking the support is entitled to.
Some key things to know about having the court to step in and determine that the person is incompetent:
- This is not a hearing that is held in civil or criminal court. This is a case that falls under what is known as “special proceedings.” This means that the clerk of superior court hears the case rather than a district court or a superior court judge.
- If the proceeding is something that ordinarily would have been considered in family law, such as the need for spousal support, then the issue is heard before the clerk of superior court rather than in regular family court. The only matter that is not heard before the clerk is child support (Clements v. Clements 219, N.C. App 581, 2012).
So if you ever find yourself in a situation where a spouse is declared incompetent and you did not file a claim to the court yourself, all hope is not lost, you can still seek or receive your spousal support.
– (Case Citation – Cline v. Teich, 92 N.C. App. 257, 374 S.E. 462 (1988)) – Attorney Jammie Wacenske