Close Menu
Orlando Family & Divorce Lawyer
Call for a Confidential Consultation Hablamos Español

Mental Capacity and Its Impact on the Divorce Process


People tend to change over time as life experience and age influences how one sees the world, and these incremental changes can cause couples to grow apart, leading to divorce. The divorce process, with the complications of property division, child custody and support, is already an overwhelming experience, but if concerns about one spouse’s mental capacity is thrown into the mix, this situation becomes extremely complex. The degree of mental impairment experienced by a spouse, particularly if there is a medical- or court- issued declaration of incompetency, will determine which aspects of the divorce process are impacted, and how a court is likely to handle this issue. Florida is a no-fault divorce State, so it is not necessary to demonstrate the other spouse is responsible for the breakdown of the marriage, but there is another, rarely used, basis to petition for divorce – mental capacity. However, even less severe forms of mental impairment can affect how a divorce proceeds, and a court’s stance on settling key issues. The issue of mental capacity recently appeared in the news as the Broward County Clerk of Court lost her petition to have her estranged husband declared incompetent so she could be named guardian and takeover his financial and personal affairs. Mental capacity is a sensitive issue that is treated with due seriousness by the courts in family law matters, and a discussion of what happens when this issue intersects with a divorce, will follow below.

Grounds for Divorce

As mentioned above, mental incapacity is grounds for divorce, but only if a court formally declares a person to be incompetent after an examination by a committee of three medical professionals. Thus, a spouse suffering from some mental impairment, but not so severe as to be found incompetent by a court, would not permit one to use this claim when seeking divorce. In addition to a declaration of mental incapacity, there is a three-year waiting period, starting from the date of incapacity, before a divorce can be initiated, and the competent spouse can, and probably will, be ordered to pay alimony. These two factors are typically the reasons why this option is rarely used. In addition, a guardian will need to be appointed for the incapacitated spouse, if not done already, to ensure his/her interests are adequately represented. Further, while mental incapacity is typically asserted by the competent spouse to leave an untenable marriage, a recent appeals court decision said a guardian of a person declared mentally incapacity may file for divorce on his/her behalf. Consequently, it seems this provision may be used by either party to end a marriage.

Impact on the Outcome of Other Issues

Mental incapacity or mental impairment is usually associated with aging, but these issues can also impact younger individuals, particularly those with psychiatric conditions or substance abuse problems. If there are young children to consider, mental issues become matters of grave concern, especially if there is a question about a parent’s ability to competently and/or safely care for his/her child. If a court finds the exercise of parenting time would be a detriment to the child’s welfare, the court can restrict the amount of time allotted to the parent with capacity issues, as well as impose supervised visitation and/or require the parent to seek medical and/or psychiatric treatment. But, note that courts are reluctant to restrict parenting time without a compelling reason, and strong evidence showing a serious issue will need to be presented to convince a judge to act.

Contact an Orlando Divorce Lawyer

Divorce is full of hidden complications that the average person may not identify. Hiring an experienced divorce attorney to review the facts of your case, and assess whether potential issues of concern exist is crucial to protecting your interests in the long term. The Orlando law firm Donna Hung Law Group handles all types of divorce cases, from the very simple to the truly complex, and provide the practical approach you need to achieve the best possible outcome. Contact the law firm at (407) 999-0099 to schedule a confidential consultation.