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Incapacity Before Your Divorce

Today I want to talk about how incapacity affects your ability to even file for divorce. Before we can enter into whether you can file for divorce, we have to talk about the level of your incapacity and who is actually incapacitated. If it’s the spouse who’s not incapacitated, who’s seeking a divorce, then the question is can he or she move forward with the filing?

While Texas law does allow you to file for divorce even if your partner is incapacitated. For many of us, the incapacitation is a mental illness. In Texas, we have no fault divorce and we have at fault divorce. One of the at fault reasons you can seek a divorce is if your spouse is a mentally ill, has been in an institution for three years or more and the prognosis of his or her recovery is dim.

So, really a permanent incapacity qualifies for an at fault divorce in the state of Texas. Therefore, he or she can file for the divorce and get their divorce. Yes, the incapacitated spouse would get a guardian or an attorney ad litem who would stand in place for them and move forward with making the necessary negotiations. However, what if it's the incapacitated spouse who wants a divorce? How does that incapacitation affect their ability to even file for divorce And will the spouse that's not incapacitated prevent or try to block the divorce? Those are the relevant questions in a situation like this.

If you have a person who is incapacitated mentally, who has been found to be incapacitated, who has a guardian and then that person is seeking a divorce, things become a little bit tricky in that situation. If they don't have the capacity to even understand the extent of a divorce or understand what exactly a divorce is, then you have to pass a couple of benchmarks before a divorce would even be allowed.

And believe it or not, in a situation like that, you would be in probate court and not in family court. But there are still thresholds they have to meet. Is this divorce in their best interest and is this really what this person wants?

If you have a situation where the person is incapacitated, has a guardianship and the guardian believes this divorce is in their ward's best interest, they're going to go to a court and try to convince the judge it is not the guardian who wants a divorce and it is actually the ward. And the second threshold is they have to prove that it's in the ward's best interest.

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