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Divorce and Mental Incapacity: How Florida Deals with this Difficult Issue


When couples first marry, especially if they are young, it is hard for them to imagine the other spouse changing with the passage of time, or how life will look after 40 or 50 years of marriage. The decision to divorce, regardless of the length of the marriage, is rarely made lightly, and spouses who do so after many years together often take that final step after years of unhappiness and contemplation. People do change over time, usually as a result of life experience, but sometimes changes in personality and behavior are caused by biological factors that can render the person unrecognizable to loved ones and friends. While Florida is a no-fault divorce state, there is a provision for mental incapacity as grounds for divorce. Further, a guardianship system exists to protect individuals with cognitive problems manage their legal, financial, and personal affairs. Guardianships in divorce, while less common, are sometimes necessary if a spouse is mentally impaired. The key issue in this situation is whether the impaired person qualifies as mentally incapacitated under the law.

The son of a real estate developer recently lost his bid to retain his guardianship over his father after a court declared the man was competent and in no need of a guardian. Though this was not a divorce proceeding, it does serve to illustrate that courts take this designation seriously, and are willing to remove guardians if sufficient evidence of competency is presented.

Mental Incapacity as Grounds for Divorce

Most people are aware of the no-fault basis for divorce that alleges the parties share irreconcilable differences that make staying married impossible. However, Florida has a second basis for divorce that applies when one of the parties is mentally incapacitated. This claim is rarely used because the law requires the incapacity to exist for at least three years before filing for divorce on this ground is permitted. Additionally, the incapacity must be legally confirmed by a judge and not merely based on personal observation or medical diagnosis. Further, courts are authorized to order the petitioner to pay alimony to the incapacitated spouse in these cases, which serves as another deterrent to using this provision to file for divorce. Finally, courts must ensure a guardian is appointed to represent the incapacitated party’s interests in these proceedings.

What It Means to Need a Guardian

For purposes of determining if a guardian is necessary, the incapacitated party must lack the ability to do the following:

  • manage property, which encompasses taking actions necessary to “obtain, administer, and dispose” of real and personal property, benefits, and income; or
  • attend to essential health and safety requirements, such as procuring healthcare, food, shelter, clothing, or personal hygiene to prevent physical injury and/or illness.

A guardian essentially assumes the right to exercise the legal rights of the incapacitated person to the extent authorized by the court. Some of these rights include the right to marry, get divorced, file a lawsuit, consent to medical treatment, decide where to live, and dispose of property. Guardians may be granted authority to take over all rights a person has to manage his/her financial and personal affairs, or the guardian may only have partial authority to oversee a particular aspect of an incapacitated person’s life. In order to assess if a person lacks these abilities, a Petition to Determine Incapacity is filed with the court, and an examining committee, composed of three medical professionals, is formed to evaluate the person’s mental capabilities. Each member must perform a physical exam, a mental health exam, and a functional assessment. Further, each must submit a report outlining the member’s opinion of the person’s ability to manage his/her life. Since this is such a serious and drastic impingement of a person’s rights, clear and convincing evidence of incapacity must be presented, and judges are instructed to explore less restrictive alternatives before appointing a guardian.

Get Help

Whether you are dealing with divorce or the incapacity of a loved one, working with an experienced attorney will help you achieve the outcomes best for you and your family. The Fort Lauderdale law office of Joyce A. Julian, P.A. represents clients in a variety of family law and guardianship matters, and can assess which legal options are best suited for your situation. Contact the office for a free consultation.




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