Switch to ADA Accessible Theme Close Menu
Alimony Reform is here. Contact Us Today For Appeals and Updates
Fort Lauderdale Divorce Lawyer > Blog > Divorce > Can a Mentally Incapacitated Person Obtain a Divorce?

Can a Mentally Incapacitated Person Obtain a Divorce?

A recent case addresses the mental capacity necessary for filing a divorce action in the state of Florida. The details sound like a soap opera plot, complete with million dollar estates and controversial prenuptial agreements. At its center is a Florida family statute that has never been analyzed under these particular circumstances.

The Case Details

According to a local news affiliate report, the matter began in probate court, where the children of an 87-year-old male asserted that his dementia made him unfit to care for his own financial affairs. The elderly man married his wife 15 years ago, after a seven-year relationship. Prior to marriage, they entered into a prenuptial agreement. The details are as follows:

  • – The husband agreed to pay the wife $10 million in cash and property; and
  • – The prenuptial states that a guardian cannot file for divorce on behalf of the husband.

One of his adult children filed a probate suit to have his father declared mentally incompetent. He reportedly made allegations that his wife was not meeting his medical needs and asked for the assignment of a financial guardian. A judge sided with the adult child and ordered the wife to move from the family home. Shortly thereafter, the adult son then amended his original claim and asserted that his father had the mental capacity to file a lawsuit, which would allow him to file for divorce on his own. As alleged in the article, the husband’s adult children stand to receive the $10 million if the divorce occurs before his death. The case continues to work its way through the Florida courts, but it does raise an important question about one Florida law.

What Florida Law Says

One of the many issues in this convoluted scenario is a Florida law that prohibits divorce immediately following an incompetency determination. The reported goal of the law is as follows:

  • – When one spouse is diagnosed with dementia or a mental illness, the healthy spouse is prohibited from obtaining a divorce for at least three years.

Even if this is the underlying reasoning, on its face, the law “imposes a three-year waiting period in cases where one of the spouses has been declared mentally unfit.” This wording appears to prohibit both the ill and healthy spouse from obtaining a divorce. This is where the dilemma lies in the above mentioned case. The court must determine whether the law should apply to both spouses. If it does, the husband may not be allowed to divorce his wife until three years from the date of his diagnosis.

The issues of divorce may extend beyond the obvious concerns. If this is the case in your situation, secure the services of an experienced and capable advocate. The attorneys of Vanessa L. Prieto, LLC work with you to promote the wellbeing of your family. Located in Fort Lauderdale, our office serves Broward, Miami-Dade and Palm Beach Counties. Call us today at 954-800-2362 or contact us online to schedule a consultation.

Facebook Twitter LinkedIn