By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Tuesday, September 6, 2016.

Florida is a no-fault state. Divorce is granted if you prove the marriage is irretrievably broken, or mental incapacity. Kentucky doesn’t allow incompetent people to divorce. That may change.

A 1943 Kentucky decision fond that Kentucky law did not authorize a mentally incompetent person to divorce. Kentucky is one of 10 states that bar mentally incompetent people from divorcing.

The man is arguing that even a person who is deemed disabled can show what their true feelings and intentions are.

“I don’t think that they should be locked up by their guardian.”

However, the man’s wife takes a different point of view. The man’s wife argues:

She was appointed as his guardian after he sent thousands of dollars to someone he believed to be a Nigerian royal prince.

The wife’s lawyer says she still cares deeply for her husband, and he needs a guardian to stop him from wasting family money on overseas pyramid schemes.

The man filed for divorce in August 2013 after he twice sought, without success, to dissolve the disability determination and guardianship, according to an October appeals court ruling in the case. The appeals court affirmed an order dismissing his divorce petition.

The Kentucky Supreme Court has heard argument, and will render its opinion soon.

I’ve written about divorce in Florida many times. In Florida, mental incapacity does not prevent you from divorcing, but no dissolution is allowed unless the party alleged to be incapacitated has been adjudged incapacitated for a preceding period of at least 3 years.

Essentially, Florida law precludes the institution or maintenance of an action for dissolution of marriage until three years after the person has been adjudged incompetent.

The purpose of this rule is to protect individuals who have become mentally incapacitated from being suddenly divorced or abandoned by their former spouses.

Mental capacity can impact your ability to settle a divorce case. Separation agreements, such as postnuptial agreements and marital settlement agreements, must be entered into by two parties who have the mental capacity to enter into contracts.

If an individual is found to have been mentally incapable when the marital settlement agreement was entered into, then the court will likely hold that the entire contract was invalid.

The ABA article on the Kentucky case is here.

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