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When "I Do" Becomes "I Don't Know": Divorce and Incapacity

Jeremy R Thomas and Amanda Duncan

Summary

  • With divorce rates rising among older and/or disabled parties, family law attorneys are more likely to encounter potential issues regarding a party’s capacity, or lack thereof.
  • When dealing with an incapacitated party in a divorce action, the practitioner should consider other potential issues that may arise and, if the incapacitated party has not yet been appointed a Guardian, ask that a Guardian ad Litem be appointed in the divorce action to represent the incapacitated spouse. Some jurisdictions allow for a Guardian ad Litem to initiate a divorce action on behalf of their incapacitated client.
  • Not every jurisdiction allows for divorce due to mental incapacity, and jurisdictions vary on the requirements to prove a party is incapacitated. Practitioners should consult their jurisdiction’s rules for specific requirements regarding an incapacitated spouse.
When "I Do" Becomes "I Don't Know": Divorce and Incapacity
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Infidelity. Incompatibility. Financial Instability. These are just some of the most common reasons clients file for divorce. However, some practitioners may face issues of one party's incapacity, especially with the rise in "Gray Divorces" many practitioners have seen in recent years. The divorce process is complex enough without the added complication of mental incapacity. So, what happens when "I Do" becomes "I Don't Know"? The incapacity of one party affects not only the division of assets, financial support, and custody but also the legal process of filing for divorce. Procedural rules and statutes will vary from state to state, and practitioners advising for or against an incapacitated person should review their local rules and laws to ensure compliance. Additionally, practitioners in this position should make special considerations when dealing with an incompetent party during the divorce process.

According to the Special Needs Alliance, studies have indicated that divorce rates increase with the onset of a disability. In addition to heightened divorce rates related to disabilities, boomers–those born between 1946 and 1964–are divorcing more than any other generation. Though potentially an issue in any divorce proceeding, one problem may be more likely to affect a litigant that falls in either of the above categories more so than other litigants: diminished capacity.

What is Capacity?

Though jurisdictions have their own definitions, most are similar in what constitutes an incapacitated person. In Alabama, for example, an incapacitated person is "[a]ny person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, physical or mental infirmities accompanying advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent of lacking sufficient understanding or capacity to make or communicate responsible decisions."

Is incapacity a ground for divorce?

While most jurisdictions recognize mental incapacity as a ground for divorce, there are a few that prohibit divorcing a mentally incompetent spouse. It is essential to know your jurisdiction-specific statutes on permissible grounds for divorce as they relate to capacity before initiating a divorce action. Some jurisdictions require a specific finding of incompetency and/or confinement in a mental institution. For example, Alabama permits a divorce to be granted based on one party, after the marriage, being "confined in a mental hospital for a period of five successive years, if such party from whom a divorce is sought is hopelessly and incurably insane at the time of the filing of the complaint." Additionally, the superintendent of the mental hospital in which the spouse is confined must make a "certified statement, under oath, that it is his opinion and belief, after a complete and full study and examination of such person, that such person is hopelessly and incurably insane." Proving mental incapacity as a ground for divorce is not an easy task and often requires careful consideration of medical records, interviews with and affidavits from doctors, a psychological evaluation to confirm not only a mental defect but the incurability and worsening of said defect, and a showing of how this incapacity affects the other party and the marriage.

Who represents an incapacitated person in a divorce?

In jurisdictions where divorcing an incapacitated person is permitted, most also require the appointment of a Guardian Ad Litem ("GAL"). The role of the GAL is to represent the best interests of and act on behalf of the incapacitated person. In some jurisdictions, the GAL may sue or be sued on behalf of the incapacitated person. For example, the Supreme Court of Alabama and the Alabama Court of Civil Appeals have ruled that a GAL may act on behalf of a mentally incompetent spouse to initiate a divorce action and that a divorce action involving an incompetent spouse can be properly maintained through a GAL. If a GAL has not already been appointed to the incapacitated spouse through other means, such as a probate action, then you would request the appointment of a GAL via motion with the divorce court, along with filing the complaint for divorce. If a GAL is appointed, service of the complaint for divorce must be perfected via the GAL on behalf of the incapacitated spouse.

Although the GAL acts on behalf of the incapacitated person, they do not act as the legal representation for the incapacitated person. Separate legal counsel can and should be retained for the incapacitated spouse. All states, with the exception of California, have adopted some variation of Rule 1.14 of the Model Rules of Professional Conduct, which addresses the client-lawyer relationship when representing clients with diminished capacity. Comment 1 of Rule 1.14 states that "[t]he normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters." While a lawyer may take reasonably necessary protective action when there is a reasonable belief "that the client has diminished capacity [and] is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest," such action "should be guided by such factors as the wishes and values of the client to the extent known, the client's best interests and the goals of intruding into the client's decision-making autonomy to the least extent feasible, maximizing client capacities and respecting the client's family and social connections." 

How does the divorce proceed against the incapacitated spouse?

The process for divorce varies from state to state, and with the added issue of incapacity, the process may vary even more. However, typically, once the GAL has been served, and possibly separate legal counsel retained, the divorce can then proceed as usual: Discovery can be exchanged with the GAL acting in place of the incapacitated spouse; expert witnesses can be consulted and retained as needed; hearings can be held; and even mediation can take place.

If the parties reach an agreement, a hearing will be held to determine its fairness. At the hearing, the Court will examine the settlement agreement and may take testimony from the GAL and the competent party. Upon determining the settlement agreement is fair, the Court will approve it and finalize the divorce.

If settlement attempts are unsuccessful, the parties will proceed to trial as normal; however, the incapacitated spouse could not testify, requiring both sides to rely on other witnesses and evidence to prove their positions. After the trial, the judge will issue an order, just as in any other matter.

Conclusion

Divorce can be a complicated process without the added hurdle of incapacity. Incapacity affects not only the division of the marital estate and custody of minor children in a divorce but also the process of filing, navigating, and trying the divorce. However, familiarizing yourself with your jurisdiction's statutes and local rules regarding the process can alleviate some of the issues for you and your client when "I do" becomes "I don't know."

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