In some exceptional cases, an incapacitated person might need to pursue a divorce in North Carolina with the assistance of an agent assigned power of attorney to act for them.
A power of attorney (POA) is a legal document allowing a principal to grant powers to an agent or attorney-in-fact to perform legal tasks on the principal’s behalf. Typically, a principal establishes a POA to take effect in their absence or if they become incapacitated.
A general power of attorney in North Carolina allows the agent to make many legal decisions for the principal. A limited power of attorney can instead be written to name specific acts the agent may take. For example, a healthcare POA authorizes someone to make medical decisions for you.
If someone needs to establish a POA to appoint an agent to assist them with a divorce action, the POA should state what is expected of the agent and its limitations. An agent with power of attorney cannot sign divorce papers on behalf of the principal in North Carolina.
Some steps required to divorce in North Carolina should be handled by an experienced local divorce attorney who can legally act on a client’s behalf and will protect their rights and financial interests.
Call the divorce attorneys of Charles R. Ullman & Associates in Raleigh or use our online contact form for more information and assistance. We serve clients in Raleigh and throughout Wake County.
Divorce Proceedings in North Carolina: A Personal Legal Matter
Many decisions to be made when ending your marriage will hit close to home. If you have underage children, you will need to determine who will assume legal and physical custody of them. You’ll need a visitation schedule for the noncustodial spouse. Either spouse may seek alimony payments.
North Carolina divorce law requires each party to compile and submit an inventory of their financial and property holdings. The couple or a judge must identify and equitably divide the couple’s marital property between them.
These requirements make the divorce process a personal legal action, unlike some other financial or business matters. That’s to say nothing about the continuing reminder and final pronouncement that your marriage failed. Even when a divorce is 100 percent the right thing for everyone involved, ending your marriage has an emotional impact that most people are not fully ready for.
Can a Power of Attorney File for Divorce?
There are acts required in a divorce that someone with power of attorney can take care of for you.
To obtain an absolute divorce, one spouse must file a divorce complaint with the Clerk of Court in the county of their residence. A divorce attorney can file the notice on behalf of their client and often does. An agent with power of attorney that specifies legal filings can also do this for you.
A financial POA or one drawn up for a divorce action could allow an agent to compile your financial inventory and ensure that your divorce attorney and your spouse have copies. The agent could also negotiate the division of marital property, child support, and alimony payments.
Conceivably, a POA could be used to negotiate your separation agreement. This document states how you and your spouse will handle such matters as alimony, division of assets, child custody, and child support. You can present your separation agreement to a family law judge, and if nothing in it is contested, the judge will adopt it as the terms of your divorce.
Legal Options for Spouses Unable to Participate in a Divorce
A power of attorney may be useful if your divorce is underway and you cannot participate in negotiations and other requirements because of an illness or injury or a job transfer, such as a military deployment. The POA would outline the tasks and authority you mean to delegate to your agent.
If an individual were to become completely incapacitated and lacking legal capacity, such as by dementia or a brain injury, the divorce could proceed after a guardian was named to negotiate on the incapacitated spouse’s behalf. A general guardian, or plenary guardian, assumes responsibility for the affairs of their ward, a person who has been declared incompetent.
The local Superior Court appoints a guardian. An applicant must be capable of a guardian’s duties and of legal age. Typically, a guardian is someone close to the disabled individual, such as an adult child, parent, another family member, or a long-time friend or companion.
Once appointed, the guardian would engage an experienced divorce attorney to advise them and to protect the disabled individual’s rights and financial interests in ongoing divorce proceedings.
A guardian in North Carolina cannot commence a legal separation and intent to divorce on behalf of their ward. However, a guardian can physically separate an incompetent person from their spouse when it is in the incompetent person’s best interest, for example, to access medical care, such as in a nursing home, or for general safety.
Further, a guardian may petition the court for a constructive trust, a trust created by the court to access assets the court determines a party (for example, the estranged spouse) should not be allowed to keep. A guardian might also seek a charging order requiring the spouse to help pay for the incompetent person’s health care.
Special Considerations for Existing Powers of Attorney During Separation and Divorce
If you and your spouse share power of attorney agreements and are divorcing, you need to take immediate steps to revoke or amend the power your estranged spouse has over your life. A divorce automatically terminates the authority granted by a power of attorney in North Carolina unless the POA states otherwise. But this does not affect the period of separation.
Many married couples appoint each other as attorneys-in-fact in case of unforeseen emergencies or in matters of shared decisions, such as co-owned property. But when you and your spouse are no longer aligned as a team, a POA can be used to hurt you.
For example, an estranged spouse with power of attorney allowing them to transfer assets among banking or investment accounts could make moves that harm you financially. A spouse with power of attorney over title to a home could conceivably sell it out from under you — or even give it to someone like a stepchild now estranged from you.
You should review all power-of-attorney agreements as soon as you and your spouse separate, or at the latest, upon either of you filing for divorce.
Contact Our Raleigh, NC, Divorce Attorneys
At Charles R. Ullman & Associates, we recognize that the consequences of divorce for you and your family are quite serious. Our team of dedicated divorce attorneys is here to help make your divorce as efficient as possible and to protect your financial interests as we work to dissolve your marriage proceeds.
To find out more about previous clients’ experiences with our law firm, please review our client testimonials. For example, M. Brintle wrote, “From start to finish, Charles and his staff handled my case very professionally and competently. I am satisfied with the results we achieved and would definitely recommend Charles and his staff to anyone needing consultation or representation regarding matters of separation and divorce.”
Schedule a confidential initial consultation with one of our Raleigh divorce lawyers by phoning (919) 829-1006 or by filling out our online contact form.
