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Navigating Mental Health Issues in Divorce


As a large segment of the population in America is entering the last decades of their lives, a notable increase in the rate of divorce among older adults has emerged in recent years. The life stage a person is in at the time of divorce has a distinct effect on the short- and long- term implications of this decision. For example, a young couple in their 20s without children who divorces likely has little property to divide and has not entered their prime earning years. Thus, the effects of divorce are lessened. The older one is at the time of divorce, the higher the stakes, and divorce among older adults brings a unique set of concerns that does not generally occur among younger couples. One issue these spouses may have to confront is mental health issues clouding the capacity of one spouse to understand or participate in the divorce case. Mental illness, particularly Alzheimer’s or dementia, are extremely hard and complicated, and exiting the marriage may be necessary for the well spouse. However, there are important legal ramifications of divorcing a spouse with mental health issues that need to be understood because they affect how the case proceeds and the obligations of the other spouse.

Divorce Due to Mental Incapacity

People tend to automatically assume that divorce is a no-fault process that permits divorce merely upon showing the marriage is irretrievably broken, a standard that is not generally hard to meet. In addition, though, a spouse can sue for divorce on the basis of the mental incapacity of the other spouse. This option comes with a number of caveats. First, there is a three-year waiting period that must pass, once the spouse is found mentally incapacitated by a court, before a divorce may be initiated. Further, the mentally incapacitated spouse must have a family representative stand in for his/her interests or a guardian ad litem must be appointed for this purpose. In essence, the law does not want the healthy spouse to have unfettered rein to pursue divorce without ensuring the other spouse is adequately protected. Perhaps most importantly, if divorce is granted on this basis, the healthy spouse can expect to be ordered to pay alimony to provide for the other spouse’s needs. As can be seen, this process is quite time consuming and costly, and a divorce attorney should be involved at every stage to limit unnecessary delays and complications.

Spousal Guardianship

In addition to a spouse petitioning for divorce based on mental incapacity, if an outside guardian is already involved, he/she has the ability to ask a court to grant them permission to petition for divorce on the ward’s behalf. This option exists to account for situations in which a guardian sees a ward’s spouse as not acting in the ward’s interests or when there is behavior that puts the ward’s health or finances at risk, as well as providing a safeguard if the guardian is a spouse from abusing this position. While spouses are often the individuals appointed to oversee the personal and/or financial affairs of a mentally-incapacitated individual, this is not always the case. Guardians cannot initiate divorce without court approval, but they can attempt to use this option to pursue dissolution as part of protecting the ward’s wellbeing. In addition, guardianship can enter a divorce proceeding when a spouse requests an appointment in tandem with a divorce case, which can have its place, but this may present the risk of being used improperly to gain the upper hand in the proceedings. Whenever an issue this complicated is involved, the services of a divorce attorney is vital.

Get Legal Advice

Divorce can come with a variety of complications, and the mental incapacity of a spouse is one of the more complicated situations you can face. In these circumstances, especially, an experienced divorce attorney should be contacted as soon as possible, and the attorneys at the Donna Hung Law Group are available to answer all your questions and provide knowledgeable representation. Contact the Orlando divorce lawyers today at (407) 999-0099 to schedule a consultation and learn more.