Considerations for Divorcing an Incapacitated Person in California

Flicker, Kerin, Kruger & Bissada LLP

In most circumstances, pursuing divorce requires the participation of both spouses. However, the California Family Code recognizes that there are situations in which one spouse may be unwilling or unable to participate in the proceedings. When a spouse is unwilling to engage, the other party may request a default judgment or court sanctions to help move the case forward. If a spouse cannot participate in the divorce proceedings due to incapacitation, the dissolution of marriage becomes more complex. 

Understanding the Incapacity of a Spouse

Incapacitation refers to a state where a legal adult lacks the mental capacity to make binding legal decisions. A spouse may be considered incapacitated for a variety of reasons, such as:

  • Unconsciousness: If the spouse is in a coma or brain-dead, they are not aware of events around them, so they cannot respond or participate in legal proceedings. 
  • Memory disorders: If the spouse has dementia, Alzheimer’s, or another memory disorder, they cannot retain critical information to make informed decisions during a court case.
  • Mental illness: If the spouse has severe mental health issues such as psychosis, delusions, or another serious mental illness, they may be unable to understand court cases and participate fully in the legal proceedings. 
  • Severe Substance Use Disorders: If the spouse has a severe substance use disorder, it is possible that they may be unable to participate in the proceedings.  This is one of the most complex issues for incapacity because the periods of incapacity may be temporary.

Assessing the Capacity of the Spouse

To divorce someone who is incapacitated, their mental and physical health may need to be professionally evaluated to prove incapacity to the Court. This evaluation must be performed by trained medical professionals with experience in the field. 

Legal Procedures for Divorcing an Incapacitated Person in California

For a divorce involving an incapacitated adult to proceed in California, the court will likely appoint a Guardian ad Litem to represent the interests of the incapacitated spouse in the divorce proceedings. California law allows for a Guardian ad Litem appointment in any case when the court deems one party as lacking the capacity to represent their own interests and needs or fully participate in the court proceedings. Guardians ad litem can be a family member, close friend, fiduciary, or even an attorney, so long as the court believes they can successfully advocate for the incapacitated party and protect their interests. 

Once a Guardian ad Litem is identified, they will stand in the shoes of the incapacitated person, or ward, in the dissolution proceedings. The Guardian is responsible for submitting filings to the court according to the best interests of their ward, attending hearings or mediation meetings on their behalf, and generally standing in their shoes in the dissolution case. 

Incapacitation also impacts other elements of the dissolution process, such as:

  • Division of Marital Assets and Support: Incapacitation typically means the person cannot support themselves. While this does not overcome California’s community property laws that require an equal split of marital assets, it may shape how assets are divided and will impact support.  The incapacity of a spouse is something the Court will consider under the Family Code §4320 factors to determine spousal support. 
  • Child Custody and Visitation Arrangements: A California court may not find the incapacitated spouse eligible for joint legal or physical custody. Depending on the circumstances of their incapacitation, they may be awarded visitation, supervised visitation, or no parental time at all. The court will make this decision based on the children’s best interests, not necessarily the preferences of either parent. 

Expert Legal Guidance for Divorces Involved Incapacitated Adults

Divorces involving incapacitated spouses are particularly complex. Anyone seeking a divorce from an incapacitated spouse should seek appropriate legal counsel from experienced family law attorneys to ensure a fair and legally sound divorce process. The skilled divorce lawyers at Flicker, Kerin, Kruger & Bissada LLP have four decades of experience representing clients in even the most complex marital dissolutions. Reach out to our Menlo Park or San Ramon law offices to discuss your concerns and explore how to resolve your divorce efficiently and effectively.

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