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How to Divorce a Spouse Who Is Mentally Incompetent

Individuals interested in filing for a Santa Clara county divorce from a mentally incompetent spouse have a few special issues to consider as they are going through the process of legally ending their marriage.

While every married couple hopes to live happily ever after, that doesn’t always happen. Sometimes, circumstances change drastically. Your spouse may be in a car accident and suffer from a traumatic brain injury that requires full time hospital care. Or your spouse may suffer from dementia and no longer be able to recognize you. This can cause great stress on any marriage, which is why it’s common for people with a mentally incompetent spouse to consider filing for divorce.

Normally, when a person is mentally not able to make decisions for him or herself, a guardian is appointed. The spouse is the first choice for this job, but another guardian has to be appointed if you are filing for divorce because of the obvious conflict of interest. This could be a close family member or friend, but the court can also appoint a guardian if no one is up to the task.

Once a guardian has been appointed, the divorce can proceed much as it would in any other case. If the guardian is not an attorney, he or she will need to hire legal representation to help with the settlement. The role of the guardian will be to make the decisions that your spouse would be making if he or she was able to fully understand the divorce proceedings.

If your spouse is receiving disability benefits, the courts will need to determine if the benefits are separate property or marital property. There are multiple factors used to determine the status of disability benefits, so you will need to speak with your attorney for more information regarding this matter.

Another important issue to consider when divorcing a spouse who has been declared mentally incompetent is alimony payments. If your spouse is unable to work and you have the resources to help pay for his or her living expenses, you may be required to pay spousal support. An experienced Bay Area family law attorney can provide additional information.

Category: Divorce
  • Academy Software says:

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    November 21, 2012 at 11:02 am

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