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Domestic Relations – Separation & Equitable Distribution – Incompetent Spouses – Guardians’ Authority – First Impression

A loving couple lived happily together until dementia issues made it unsafe for them to stay together. Although there are other avenues for the plaintiff-wife’s guardian to secure plaintiff’s share of marital assets, the guardian may not institute an equitable distribution action on behalf of the incompetent wife.

We reverse the trial court’s denial of the defendant-husband’s motion to dismiss.

A trial court does not have subject matter jurisdiction over an equitable distribution claim before the date of separation. Separation begins on the date the parties physically separate with the requisite intention that the separation remain permanent.

Plaintiff’s guardian argues that, once she removed plaintiff from the marital home and placed her in a memory care facility, the parties were legally separated. However, there was evidence that defendant became upset when he could not visit with his wife, and a family friend testified that he did not understand the couple to be legally separated. Given the conflicting evidence as to whether the couple held themselves out as legally separated, we consider their subjective intent.

Because plaintiff was deemed incompetent, she could not form the requisite subjective intent to separate from defendant for purposes of equitable distribution.

By statute, G.S. § 50-22, and pre-existing case law, a guardian may not commence an action for divorce.

Interpreting § 50-22 to prohibit a guardian from causing a separation for purposes of equitable distribution does not otherwise limit the guardian’s powers under G.S. §§ 35A-1241 and 35A-1251 to maintain an action to recover possession of the ward’s property. The Legislature did not provide a mechanism in Chapter 50 for a guardian to seek the incompetent person’s assets.

We presume the General Assembly knows of existing law when it enacts legislation. At the time the Legislature enacted § 50-22, we presume the General Assembly was aware of our precedents that (1) an incompetent spouse is not capable of forming the requisite intent to separate for a divorce, (2) the separation requirement for divorce is the same for purposes of equitable distribution, (3) separation begins at the time of physical separation where one party has formed the intent for the separation to be permanent, and (4) the trial court does not have subject matter jurisdiction over a claim for equitable distribution if it is filed prior to the date of separation.

We note that § 35A-1251(3) authorizes a guardian “to maintain any appropriate action or proceeding to recover possession of any of the ward’s property, to determine the title thereto, or to recover damages for any injury done to any of the ward’s property[.]” Chapter 35A does not define the term “maintain” in its definitions section. Merriam-Webster’s Dictionary defines “maintain” as “to keep in an existing state,” “to preserve,” or “to continue.” We interpret “maintain” in the context of § 35A-1251(3), alongside § 50-22, to authorize a guardian to continue an action for equitable distribution only when the claim already exists at the time the guardianship is formed, not after. In other words, pursuant to § 50-22, a guardian would be authorized to bring an action for equitable distribution on behalf of an incompetent person who had been legally separated prior to incompetency. And a general guardian would be authorized to bring suit for equitable distribution where the other, presumably competent, spouse caused the physical separation with the requisite intent, because subject matter jurisdiction existed prior to the guardianship, so long as the guardian does not allege intent on behalf of the incompetent spouse.

Our interpretation is consistent with precedent holding that a guardian may not substitute his or her intent for that of an incompetent person as to the disposition of property.

As with divorce, the decision to legally separate from one’s spouse for equitable distribution, is deeply personal and volitional. Based on the plain language of the divorce and guardian provisions and considering the legislative history of § 50-22, we hold that a general guardian lacks the authority to cause a legal separation on behalf of an incompetent spouse for purposes of equitable distribution. Because the guardian could not create a marital separation, the parties were not legally separated, so the trial court was without subject matter jurisdiction to hear the equitable distribution claim.

Our decision notwithstanding, general guardians are not altogether foreclosed from accessing marital assets on behalf of an incompetent spouse. For example, a guardian may petition the trial court for a constructive trust. A guardian may also seek a charging order for the distribution of payments for the incompetent person’s health care. Finally, in the event of spousal abuse, a guardian unequivocally has the authority to take custody of the incompetent person, as the guardian has done in this case.


Dillree v. Dillree (Lawyers Weekly No. 011-238-22, 23 pp.) (Lucy Inman, J.) Appealed from Moore County District Court (Warren McSweeney, J.) Jonathan Silverman for plaintiff; Charles Clanton, Edward Greene and Jessica Heffner for defendants. 2022-NCCOA-835

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