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How Does Incapacity Affect You During Your Divorce?

So, you're in the middle of a divorce and your spouse becomes incapacitated. What's next? If you are in the middle of a divorce and your spouse becomes incapacitated, the person could have had a stroke and is now brain dead or maybe they have a stroke and become somewhat limited, incapacitated or maybe they have a total mental breakdown. Or maybe your spouse has Alzheimer's, Parkinson's or another type of debilitating illness. And now you're in a situation where you are across the table from someone who cannot reasonably defend themselves.

What's next? One option could be to request a guardianship. Because you're in the middle of a divorce, you cannot be your spouse's guardian. Just think about it. If you are getting the guardianship of his estate and you're in the middle of a divorce, you may be tempted to give yourself all the assets.

That will never happen and the courts will never allow that. However, if you're deep into the negotiations, if you already have a mediated settlement agreement in a situation like that, you could petition the probate court for guardianship. A Guardian ad litem will step in, who is an attorney and then you can finish the negotiation and get your divorce.

You might be in a situation where the guardian is appointed and he or she could challenge the divorce altogether. And then you have to be in a situation where you're going to convince the probate court to give you your divorce. And please bear in mind if you are in family court getting a divorce, your spouse becomes incapacitated and then you have to file the guardianship in probate court, your family law case will get transferred over to the probate court.

According to Texas statutes, the probate court and the guardianship court have the authority to decide your divorce case and/or your child custody case and to actually do the actual division of your divorce. One of the things that you must realize is, if you're going through a divorce and your spouse becomes incapacitated and your spouse may not be able to work in the future, your negotiations may be blown to pieces. Now you will be looked at to support your spouse and, in a situation, where your spouse becomes incapacitated, the court can rule you will have to pay spousal support indefinitely.

What does that look like? $5,000 or 20% off your income, whichever is less. Therefore, when a spouse becomes incapacitated during a divorce, this leads to a very important question, who filed for the divorce and whether you have the ability to non-suit it, because quite frankly, not going through a divorce may be the best thing you can do if your spouse becomes incapacitated.

Again, this is a decision that you'll have to make with a well-seasoned, well-trained attorney. At the Law Office of Bryan Fagan, we have dozens of qualified attorneys who can help you.

  • Megone Trewick is the Lead Estate Planning, Probate and Guardianship attorney with our firm and she would love to speak with you about any and all your Estate Planning matters. Please call our office today at: 281-810-9760 to schedule your Complementary Consultation!

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