Skip to content 
Today, I want to explore how incapacity can affect your ability to file for divorce. Before diving into whether you can proceed with the filing, it’s important to understand the level of incapacity. You must also determine who is actually incapacitated. If the spouse seeking the divorce is not incapacitated, the next question is: can they move forward with divorce and incapacity in the equation? Understanding the legal implications of incapacity on the divorce process is crucial in determining the next steps.
Filing for divorce with an incapacitated spouse
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 mentally ill. This applies if they have been in an institution for three years or more. Additionally, the prognosis for their recovery must be 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. This person would stand in for them and handle the necessary negotiations. However, what if the incapacitated spouse wants a divorce? How does their incapacitation affect their ability to file for divorce? Will the spouse who is not incapacitated try to prevent or block the divorce? Those are the relevant questions in a situation like this.
Divorce for an incapacitated spouse: legal challenges and considerations
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.
Conclusion
Divorce and incapacity present unique legal challenges that require careful consideration. If one spouse is incapacitated, it can impact the ability to file for divorce and complicate the process. Understanding the legal requirements surrounding incapacity, including who can file and how to proceed, is essential for those navigating this situation. Consulting with an experienced attorney can provide clarity and ensure that the process moves forward smoothly, even in the face of incapacity.
Other Related Articles
- Incapacity Protection While Going Through a Divorce
- Planning For Incapacity: Powers Of Attorney and Advanced Directives In Texas
- How Does Incapacity Affect You During Your Divorce?
- Emergency Power of Attorney in Texas: When and How to Use It
- 10 Common Misconceptions About Power of Attorney in Texas
- Understanding the Texas Statutory Durable Power of Attorney Form
- What Certification Does a Texas Attorney Need to File Guardianship? A Quick Guide
- Legal Requirements for Power of Attorney in Texas: What to Know
- How to Contest a Guardianship in Texas: Navigating the Legal Process
- How to Give Consent for Guardianship in Texas: A Helpful Overview
