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Mental Illness and Divorce in Florida


Florida is a no-fault divorce state, which means that allegations of wrongdoing are not utilized as legal grounds for a divorce. In a state that recognizes “at fault” divorce, you will see abandonment, adultery, and cruelty as typical grounds that will give rise to a divorce filing.

There is a unique element to Florida’s divorce laws which does allow for a spouse to file for divorce if their husband/wife is declared incapacitated, insane, or incompetent. Unfortunately, it is not as straightforward as it appears. If your spouse suffers from mental illness and you are contemplating divorce, it’s in your best interest to speak with a Florida divorce attorney who has experience with mental incapacity as grounds for divorce.

Mental Incapacity Requirements

This is not necessarily a widely used ground for divorce because the law requires that the mental incapacity must exist for a minimum of three years prior to filing for divorce. In addition, a judge must confirm the incapacity. It does not qualify based on your personal observation or even a medical diagnosis. Be advised, you could also have to pay spousal support to the incapacitated spouse in the event you file for divorce. Lastly, the court will need to appoint a guardian to represent the incapacitated spouse’s interests during the divorce.

The Need for a Guardian

When it comes to appointing a guardian, in some cases, the court will look at the incapacitated spouse’s ability to handle:

  • Necessary health and safety requirements, like getting food, shelter, and clothing, and attending to their own healthcare and personal hygiene needs to prevent illness or physical injury; or
  • Managing property, which includes any necessary actions required to obtain, dispose, or administer both personal and real property, income, etc.

A spouse who can’t handle these tasks will need a guardian who will act on behalf of the incapacitated person in whatever capacity a judge authorizes. The court can administer a guardian to handle a variety of rights for someone — file a lawsuit, get married or divorced, dispose of property, consent to medical treatment, and more.

A judge can order that a guardian have authority over all aspects of an incapacitated person’s affairs, or they can issue partial authority to oversee certain aspects. To reach a decision, a Petition to Determine Incapacity is filed with the court. Three medical professionals will make up the examining committee to evaluate the spouse in question. Each committee member will perform an independent examination that includes both a physical and mental evaluation, as well as a functional assessment.

Retaining a Florida Divorce Attorney

The process of having a spouse declared mentally incapacitated and a guardian appointed can be complex and emotionally trying. Having a knowledgeable Florida family law attorney on your side can help reduce some of the stress while ensuring all legal procedures are followed. If you need assistance with divorce or mental illness of a loved one, contact the Law Offices of Schwartz | White at 561-391-9943 to schedule a consultation.

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