Law Office of Daniel E. Forrest, P.A.

When a spouse shows signs of dementia, issues related to marriage and divorce can get complicated. In some circumstances, dementia can cause difficult behavior and symptoms that challenge the foundations of even a good relationship. 

But what if the spouse with dementia no longer even recognizes his or her spouse? When is it okay for the healthy spouse to move on? Sometimes, it can even go the other way, with the spouse with dementia wanting to get out of the marriage.

Beyond the relationship issues, divorce after dementia is diagnosed might appear advantageous for financial reasons, perhaps related to public benefits like Medicaid or Social Security. 

Florida of course has a larger proportion of seniors than most other states, so the issue certainly comes up on a more regular basis. The Sunshine State has two laws that deal with divorce after dementia. 

Filing for divorce when the spouse has a guardian in Florida 

If a spouse has been found "incapacitated" under state law and has been appointed a guardian, the guardian may file for divorce on behalf of the protected person only if the guardian can get "specific authority" from state court. 

Getting permission from the court may be a tall order. For example, the court will appoint an attorney to represent the incapacitated spouse. The judge must look at evidence of "independent medical, psychological, and social evaluations" of the disabled spouse. The judge must meet personally with the spouse to assess his or her capacity and give him or her a chance to talk with the judge about the pending petition for divorce. 

Finally, the court must find "clear and convincing evidence" that: 

  • The disabled spouse does not have the mental capacity to decide whether to file for divorce and this capacity is unlikely to change.
  • It is in the best interest of the incapacitated spouse to file the petition for divorce. 

If the court grants permission after this process, the guardian may file a petition on behalf of the disabled spouse for divorce. 

Mental incapacity as a ground for divorce 

Florida law provides two grounds for divorce: irretrievable breakdown of the marriage or mental incapacity of one spouse. However, for divorce based on incapacity, the incapacitated spouse must have been officially found incapacitated by a Florida court according to the procedures for doing so in state statute and that must have been at least three years ago. 

If the other spouse files for divorce, he or she must serve notice on either one of the closest blood relatives or on the guardian of the incapacitated spouse. The relative or guardian may appear and testify. 

If the incapacitated spouse has a guardian (other than the situation when the other spouse is the guardian), he or she must "defend and protect the interests" of the disabled spouse in the divorce. If the incapacitated spouse has no guardian (other than the other spouse), the court will appoint a guardian ad litem to represent the disabled spouse. 

The statute also provides that the court can order the petitioner spouse to pay alimony to the disabled spouse. 

Seek legal advice 

Anyone with questions about divorce and dementia in Florida should seek legal advice from an experienced attorney. Each situation is unique and may raise different factual and legal issues.

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