Mental Incapacity and Divorce in Florida

Moving through the thought process that leads to the decision to initiate divorce proceedings is not easy, and normally comes with a lot of emotional angst. This decision can become even more complicated and distressing if a spouse is suffering from a mental health issue. A recent news story in Lakeview, Florida, discusses a man living on his front lawn as a result of an ongoing divorce. His wife is currently living in the house but will not allow him inside. Neighbors and friends question his mental stability due to health issues and erratic behavior. Mental incapacity in divorce is an issue more likely to come up in Florida because of the large elderly population. Consequently, its effect on a divorce petition is worth exploring and will be discussed below.

Grounds for Divorce

Florida law recognizes two grounds a petitioner can claim to justify a divorce. The first, and most commonly known, is that the marriage is irretrievably broken. Basically, this means the spouses have issues that are so serious they cause a complete breakdown of the marriage. It should be noted that if one spouse denies the marriage is irretrievably broken, a court may order the couple into counseling for up to three months to see if reconciliation is possible.

The second, and rarely used, ground for divorce is mental incapacity of a spouse. One reason this claim is rarely made is due to a time requirement that mandates a divorce cannot be filed until at least three years have passed since the spouse was adjudicated incompetent. Notice of the divorce must be given to the nearest blood relative or the incapacitated spouse’s guardian. The blood relative or guardian is authorized to appear in court on the spouse’s behalf and is responsible for protecting the interests of the incapacitated spouse. If the incompetent person has no guardian or the guardian is the person petitioning for divorce, the court will appoint one for the purposes of the divorce proceeding. Additionally, alimony for the incapacitated spouse is always considered in divorce cases of this type so that a vulnerable party is not left without the resources necessary to care for him/her.

Mental Incapacity

So, the question then becomes – how is one declared mentally incapacitated? First, a petition to determine incapacity must be filed along with a petition for the appointment of a guardian, if necessary. Notice must be provided to the person named in the petition, and it must also be read to him/her.

A court will appoint an examining committee within five days of filing the petition. The committee is made up of a three members and is required to include at least one psychiatrist or other doctor. Additionally, at least one member must possess specialized knowledge of the kind of incapacity alleged in the petition. Otherwise, the members are medical professionals, licensed social workers, someone with an advanced degree in gerontology, or someone with the requisite knowledge and training needed to evaluate for incapacity. Each committee member examines the person alleged to be incompetent to determine if he/she possesses the ability to make decisions related to things like medical care, living arrangements, property management and marriage. These reports are submitted to the court and are used to aid the court in making a decision.

The court will then hold a hearing in which the person alleged to be incapacitated must appear, unless the appearance is waived by the attorney for the person alleged to be incompetent or good cause justifies the absence. Following the hearing, a court will determine if the person named in the petition is mentally incapacitated, and if so, whether he/she retains any rights.

Speak to a Lawyer

In any divorce case, it is best to consult with an attorney prior to filing in order to ensure you know all your legal options. This is especially true if your spouse is mentally incapacitated because this will likely bring greater scrutiny from a court that will favor the incompetent spouse. The Tampa law firm of Bubley & Bubley, P.A., offers legal representation in a variety of family law matters, including divorce, and is available to meet with you. Contact us to schedule a consultation.

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