Are You (or Your Spouse) Legally Competent to Divorce?

Many people joke that all people getting divorced have temporary diminished capacity because it is during divorce that we often see otherwise confident, smart and successful people engage in foolish behaviors.  But, putting aside the joke, there are people who actually suffer from mental disorders which, in fact, render them incompetent to seek and maintain a divorce action.

The Law Presumes Capacity

The law presumes that parties have sufficient mental capacity to get married and to divorce.  The law also holds that a diagnosis of a mental disorder alone does not render a person legally incapacitated.  As mental disorders are more and more frequently diagnosed and as more and more people divorce late in life while often seeing the onset of dementia, the issues that surround the capacity to divorce increases.

At a very minimum, the mentally incapacitated spouse must be able to exercise a judgment and can express that he or she wants to end the marriage.  This is a very low standard and can be met even if the spouse is under conservatorship or represented by and through a court-appointed guardian (guardian ad litem).  Because mental capacity can change even after one has met this very minimal standard to commence the divorce, the incapacitated person must also remain capable, throughout the proceeding, of exercising a judgment and, again, expressing the continued wish to terminate the marriage.


Many complications arise for the lawyers involved in these cases including knowing when to appoint a guardian ad litem or to seek a conservatorship for the incapacitated spouse; without such legal protection, the attorney may not have the authority to act on behalf of the incapacitated spouse.  Also, there is a significant concern with regard to the fiduciary duties in a marriage.  The spouse who is not incapacitated (i.e., the well spouse), and his or her attorney, must be hyper-vigilant to protect the well spouse from claims that he or she breached a fiduciary duty owed to the incapacitated spouse.  An important way to protect against such claims is for the well spouse to seek a guardian ad litem or conservator   – someone other than the spouse – to represent the incapacitated spouse in the divorce.

What to Do

If a lawyer or a party believes one of the parties may lack the mental capacity required by the law to seek and maintain a divorce, it is necessary to employ experts.  In addition to working with a family law attorney, it is wise to consult with an estate planner because the definitions and parameters for determining legal incapacity are mostly derived from the Probate Code in defining testamentary capacity (that is, having the mental capacity to create a valid will), which is similar to the capacity to marry and divorce.   Also, working with doctors is critical in this assessment.  Not all mental disorders render a person legally incompetent, which is why experts are critical in this determination.

Parting Thought

In California, “[i]t has been held over and over in this state that old age, feebleness, forgetfulness, filthy personal habits, personal eccentricities, failure to recognize old friends or relatives, physical disability, absent-mindedness and mental confusion do not furnish grounds for holding that a testator lacked testamentary capacity.” (Estate of Selb (1948) 84 Cal.App.2d 46 49 (Estate of Selb); Prob. Code, § 6100.5). As noted above, if a person with these deficiencies can still be held capable of creating a valid will, such a person can also be held competent to enter into a divorce.