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Divorcing an Incapacitated Individual: Frequently Asked Questions

In the state of Florida, there are two grounds for divorce. Demonstrating that the marriage is irretrievably broken is the most common rationale used. However, in rare cases, spouses may rely on the alternative rationale: incapacitation. If one spouse is or becomes mentally incapacitated and remains so for three years or more, the marriage may be dissolved. Clearly, such a divorce can produce a great deal of emotional distress, complexity, and frustrations for both spouses and even each of their families. Here are some of the most common questions and concerns regarding divorce in the case of the incapacitation of a spouse, along with their answers.

What Does “Incapacitated” Include?

Florida law considers a person legally incapacitated when he or she is unable to manage at least some of his or her property or to meet some of the essential health and safety requirements. An incapacitated person in Florida is unable to do some of the following things:

  • Get, manage, or dispose of physical property, real estate, intellectual property, or other types of property like benefits payments or income; or
  • Receive healthcare, to provide for his or her own food and basic necessities, or to be able to do so only by risking developing serious physical injury or illness.

As an important note, physical incapacity is defined in Florida law but it is not grounds for divorce; only mental incapacity may serve as grounds to dissolve the marriage.

How Does One Go about Divorcing an Incapacitated Person?

Divorcing an individual on the grounds of incapacitation first requires a waiting period. The spouse must be and remain incapacitated for more than three years (even if the individual seeking the divorce attempts to circumvent the waiting period by claiming divorce not on the grounds of incapacity but on the grounds of irretrievable brokenness). After the waiting period, a court must make a determination of incapacity. The non-incapacitated individual should begin the process by filing with the court a petition to determine incapacity. A court will have to find, on the basis of clear and convincing evidence, that the allegedly incapacitated spouse is indeed incapacitated, and will have to determine what exactly the individual’s incapacities are and what rights they may be incapable of exercising.

Who Will Represent the Incapacitated Spouse in Proceedings?

An incapacitated spouse in a divorce may already have a general guardian (appointed or acquired at or near the time of the incapacitating event) who can be granted powers to assist in the divorce process for the incapacitated spouse. Additionally, the court may assign an advocate to represent the rights and interests of the incapacitated individual if necessary.

Navigating a divorce can certainly be difficult in any case, but is even more complicated if one party is incapacitated. If this or other complications are present in your divorce, it may be even more important to seek the advice of an experienced family lawyer. At Schwartz | White in Boca Raton, qualified family law attorneys are available to answer your questions. Call 561-391-9943 today for a consultation.

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