Deciding you want a divorce is hard, and it’s often complicated, even if both people agree. It can become especially challenging if you and your spouse agree on a divorce, but they may be incapacitated. So, what do you do in this situation? Florida Statute 61.052 (b) is the statute that can guide you on this matter. Here is what you need to know:
Understanding Florida Statute 61.052(b) — Mental incapacity of one of the parties.
Florida Statute 61.052 (b) reads as follows:
- “No dissolution shall be allowed unless the party alleged to be incapacitated shall have been adjudged incapacitated according to the provisions of s. 744.331 for a preceding period of at least three years.
- Notice of the proceeding for dissolution shall be served upon one of the nearest blood relatives or guardian of the incapacitated person, and the relative or guardian shall be entitled to appear and to be heard upon the issues.
- If the incapacitated party has a general guardian other than the party bringing the proceeding, the petition and summons shall be served upon the incapacitated party and the guardian; and the guardian shall defend and protect the interests of the incapacitated party.
- If the incapacitated party has no guardian other than the party bringing the proceeding, the court shall appoint a guardian ad litem to defend and protect the interests of the incapacitated party.
- However, in all dissolutions of marriage granted on the basis of incapacity, the court may require the petitioner to pay alimony pursuant to the provisions of s. 61.08.”
How to Know When a Divorce May Be Allowed
Reading this Statute, you may believe that you are unable to obtain a divorce for three years, regardless of the circumstances. Many people read this and believe that incapacity means no divorce for three years. However, you may be in a situation where the court will allow a divorce. In order for this to happen, the court must determine that a divorce is in the best interest of the incapacitated person. Consider the following scenarios:
- The incapacitated person, their guardian and their attorney may argue that divorce is in the best interest of the incapacitated person if the other spouse simply does not want a divorce because they want to control the incapacitated spouse’s half of the money.
- The non-incapacitated spouse might see not divorcing the incapacitated spouse as financially prosperous to them. However, this may be detrimental to the incapacitated spouse.
Before proceeding with a divorce, the court will examine all the reasons as to whether or not divorce is in the best interest for the incapacitated person. The court must hear from the incapacitated person, their guardian, and the attorney of incapacitated person regarding what is best for the incapacitated person before making a final decision.
If you have more questions regarding a Marital and Family Law matter, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. at 407-732-7620 and set an initial consultation.
This article is for informational purposes only, and it does not form an attorney client privilege.