A guardian over an incompetent spouse can separate the ward from her spouse if the guardian determines it to be in the ward’s best interest. It may be in the ward’s best interest to separate from the spouse if there’s a safety issue, or if dementia requires that the ward be placed in a care facility.
However, a guardian cannot create a legal separation. Meaning that even if the guardian removed the ward from the joint residence, this physical separation is not done so with the intent required to cease the matrimonial cohabitation. Therefore, the new placement of the ward away from the spouse does not start the one-year clock, from which at the end of the countdown, a divorce action may be filed.
There are, however, other tools at the guardian’s disposal to help protect assets and matrimonial rights for their principal, specifically, constructive trusts, charging orders, and the like.
The above is from the holding of Dillree v. Dillree, 2022-NCCOA-835. Interesting.
