As divorce, blended families, and second and third marriages become more common in our society, the questions of how these changing family dynamics will impact our aging population have become more complicated.

The issue of divorce becomes especially complicated when there is an adult who is incapacitated. Under current law, a guardian under Mental Hygiene Law (MHL) Article 81 Guardianship may not prosecute an action for absolute divorce. This means that the guardian cannot seek a divorce on behalf of the incapacitated person.

Furthermore, a guardian cannot continue to prosecute an action for divorce once the plaintiff in the action is determined to be an incapacitated person in a guardianship proceeding. The courts have indicated that the reason for this is because the law does not specifically provide for a guardian to have the authority to initiate divorce proceedings, therefore the right to seek a divorce belongs solely to the individual.

Notwithstanding the fact that a guardian cannot either start a divorce proceeding or continue one that the incapacitated person started prior to being declared incapacitated, there are options available to the guardian in order to end the marriage.

It is possible for a guardian to seek an annulment of a marriage if the circumstances warrant it. In most cases where a guardian has been successful in annulling a marriage of an incapacitated person, the incapacitated person has been financially exploited or subject to elder abuse and the marriage was a result of the abuse or exploitation. The courts have allowed a guardian to annul a marriage because the individual did not have had the capability to consent to the marriage.

It is also possible for a MHL Article 81 guardian to defend a divorce proceeding initiated by the spouse of the incapacitated person.

Another option available to a guardian is to seek a legal separation. It is important to note that there are significant legal differences between a divorce and legal separation and a divorce that will impact the rights of the incapacitated person, so the guardian should carefully consider the implications of a legal separation before moving forward with this option.

The underlying and most important obstacle to the guardian’s ability to procure a divorce or legal separation is the incapacitated person’s wishes. Since the law requires that the guardian affords the incapacitated person the greatest amount of independence and self-determination with respect to the personal needs, if the Incapacitated Person does not wish to be divorced or legally separated than the guardian should honor that wish.

Eric J. EinhartEric J. Einhart
Russo Law Group, P.C.
100 Quentin Roosevelt Blvd., Suite 102
Garden City, NY 11530
800-680-1717

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