Dementia and Divorce in Your Golden Years

Growing old with your spouse and enjoying the fruits of a long life lived together is the image most married couples envision when thinking about a successful marriage. However, what do you do when faced with a spouse that becomes mentally incapacitated and is no longer capable of engaging in a marital relationship, perhaps even completely forgetting their spouse? Worse, what if that spouse decides to divorce you despite mental deficiencies? A Palm Beach woman faced this unusual situation when her spouse of 15 years filed for divorce. The divorce was preceded by a petition from the man’s son seeking to have him declared mentally incompetent and asking the court to appoint a guardian to oversee his care and financial matters after allegations were made by caregivers that his wife abused him. A court declared him incompetent but allowed him to retain the right to sue and be sued, which left him the ability to file for divorce. Ultimately, a judge found he was not competent to petition for a divorce after questioning the man and observing his demeanor. The case highlights a little-known Florida law that regulates divorces involving a mentally incompetent spouse. In light of Florida’s large population of elderly people and the fact that dementia affects 7% of people over the age of 65 older, issues surrounding divorce and an incompetent spouse are especially important to address and will be discussed below.

In Florida, there exists a basis for divorce that relates to mental incompetency of a spouse. Florida law states that once a spouse is declared legally incompetent, three years must pass before a divorce will be granted. This law is intended to protect the incompetent person from a spouse who decides to divorce and abandon the ill partner leaving the incompetent person without necessary resources. The incompetent spouse in a divorce proceeding is entitled to a guardian to protect the incompetent spouse’s interests, and the court will appoint a guardian if the incompetent spouse does not have any blood relatives or legal guardians to appear on the spouse’s behalf. Further, the court has the authority to order alimony from the healthy petitioning spouse to support the medical needs of the incompetent spouse.

In order for someone to be declared mentally incompetent, a petition must be filed with the court, who will decide, in conjunction with the evaluations and recommendations of a three-member medical examination committee, whether the person is capable of exercising certain rights. The examining committee must be formed within five days of when the petition is filed, and each member must determine separately and independently if the person is incompetent based on a physical examination, a mental assessment and a functional analysis. A court will then take the examining committee’s report to decide the factors that weigh on a finding of incapacity: the nature and extent of the incapacities, the self-care and medical treatment areas the person is incapable deciding, whether limitations on legal decisions are necessary, and which rights the person is unable to competently exercise. The rights a court is most concerned about include the right to marry, to vote, enter into a contract, buy or sell property, hold a driver’s license, decide where to live, agree to medical treatment, to sue and be sued and to make decisions about the person’s social interactions. Only the rights the court specifically takes away are transferred to a guardian, with the person retaining all other rights. The person being evaluated for incapacity is entitled to representation and the will court appoint an attorney if necessary. Additionally, the person must be present at the incapacity hearing.

Divorce is never an easy decision or process, and divorce later in life brings new considerations that further complicate matters. If you are facing divorce after the age of 50, and live in South Florida, Stok Kon + Braverman offer services specifically geared to this situation. Contact us today for a free and confidential consultation.