Berman & Asbel, LLP

Does a spouse with dementia have a right to seek a divorce?

A lot of states have something to say about spouses attempting to get out of a tough marriage situation when the other spouse is afflicted with dementia. In general terms the law frowns on that kind of action. There may be conditions under which it might be possible to pursue a divorce action in such circumstances, but it's likely that it would require taking the matter to litigation.

There is another scenario that many might not ever have thought of, but it's one that definitely deserves some attention, especially these days when awareness about dementia is on the rise. The issue in question would be does a spouse with dementia have a right to file for divorce? Another way to phrase it might be, if the law blocks a competent party to divorce a spouse, should an incompetent spouse be blocked from action?

As with so many issues of law, this is one that has no simple answer in Pennsylvania. That's why any time questions like this arise, it's important to consult an experienced attorney who can research the issue and determine if action might be possible. This may be especially true if the divorce action involves complicated property division issues.

This is an element of a case in the hands of a Florida court now. It features an 87-year-old real estate magnate who has trouble remembering the name of the president of the United States or that this is 2015. That has not stopped him from filing to divorce his 80-year-old wife of 15 years.

The case pits the wife against the man's children from his first marriage. At the center of the legal fight are a prenuptial agreement and a previous court's ruling granting the husband the right to sue for divorce. That came despite all sides agreeing that the husband suffers from dementia.

The wife argues that his dementia means he is not fit under Florida law to file for divorce himself, and self-filing is a stipulation of the prenuptial agreement. The children argue that with $10 million at stake, the wife is only fighting the issue because of the money.

Both sides say the other is manipulating the man and the judge says the question he is facing is whether the man has any clue as to what is really going on.

A decision on that is still pending at the time this is written.

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