Divorcing a Spouse with Dementia or Other Cognitive Impairment

Any major health issue can place a significant burden on a marriage, but dementia, Alzheimer’s, and other cognitive impairments are particularly difficult to handle. These conditions often make the sufferer unpredictable, sometimes violent, and eventually uncommunicative. The situation may become too much for either spouse, and divorce may become an unfortunate, but necessary option. However, given the sensitive nature of one spouse’s health, how does the other spouse properly handle the end of the relationship, and when is it permissible to move on? Further, how does the legal process view a mental impairment in the context of divorce? Parties to any legal proceeding or transaction must be able to understand the nature of what is happening and meaningfully participate, but dementia can hinder a person’s ability to do either. In the case of a spouse with dementia, the question becomes how to protect his/her interests and the right of the other spouse to seek an end to the marriage? Florida, being a popular place for retirees to live, sees more residents facing this complex issue compared to other States. Consequently, exploring a few different issues related to divorcing a spouse with dementia or another cognitive impairment could be beneficial to many, and will be discussed below.

What If the Spouse Filing for Divorce Already Has a Guardian?

When someone develops dementia or Alzheimer’s, at some point, he/she will be unable to make decisions related to finances, and for many, even daily decisions related to medical treatment and self-care become an issue. Establishing a guardianship is a common response to this dilemma, as it allows the guardian to make these decisions on behalf of the impaired person to ensure his/her welfare and interests are protected. However, because a guardian is acting in a fiduciary capacity over a person’s inherent rights, there is a significant amount of court oversight, including the right to bring a suit in court. In the context of divorce, if the guardian thinks it is in the best interests of the incapacitated individual to seek a divorce, the guardian will need the court’s permission, which will not be easy to secure. The court will appoint an attorney to represent the incapacitated spouse, as well as seek independent medical/psychological evaluations of the individual and conduct an assessment of the spouse’s ability to understand the proceedings. The judge will be looking for evidence the spouse does not have the capacity to understand a need to file for divorce, and that divorce is in the spouse’s best interests. If permission is granted, the guardian will be allowed to proceed with the dissolution.

Mental Incapacity as Grounds for Divorce

Alternatively, if the healthy spouse wants to seek divorce, he/she does have the option of suing for divorce based upon the mental incapacity of the other spouse. This basis for divorce only works if a spouse was found legally incompetent under State law, which requires a judicial declaration after an evaluation by a committee of three medical professionals, for at least three years. This ground is in addition to the more familiar irretrievable breakdown of the marriage, and is less used because of the three-year waiting period, as well as likelihood that the court will order the healthy spouse to pay alimony to support the incapacitated spouse for the remainder of his/her life. In addition, a guardian or guardian ad litem, if no guardian is appointed, will need to be involved to advocate for the impaired spouse’s welfare, which will add time and cost to the entire process. Consulting with a divorce attorney about which process is most advantageous is crucial to getting outcome one wants.

Consult a Divorce Attorney

Many issues lead to divorce, including health problems and if you have questions about how your spouse’s situation could affect the process, talk to our experienced attorneys at All Family Law Group, P.A. We have years of experience addressing a wide spectrum of divorce-related issues, and we are available to discuss the details of your case.  Contact our Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. to schedule a free consultation by telephone or in person. We can be reached at 813-672-1900 or contact us by email.

by Lynette Silon-Laguna Google+

Resource:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0744/Sections/0744.331.html