Can you divorce a spouse who has dementia?

Dementia can be devastating for couples who are in long-term marriages. After all, the healthy spouse must learn to take care of the one who is struggling to maintain mental acuity. If your husband or wife needs to qualify for certain programs, though, divorcing him or her may become necessary.

Divorce is a legal process that requires all parties to understand its implications. If your spouse has advanced Alzheimer’s disease or another form of dementia, he or she may lack the mental fitness to make legal and financial decisions.

Your spouse’s power of attorney

You and your spouse probably have an estate plan. If you have a legally valid power of attorney, you can typically make legal and financial decisions on your spouse’s behalf. During a divorce, though, there is an automatic conflict of interest. Consequently, your spouse’s power of attorney likely does not allow you to manage his or her divorce interests.

A guardianship for your divorce

Before proceeding with your divorce, your spouse may need a legal guardian to advocate for his or her interests. That is, if incapacitation is an issue, a court may appoint a guardian to represent your spouse. While your lawyer and the court-appointed guardian may agree on many matters, you may also have to deal with objections from your spouse’s guardian.

Your legal options

If you and your spouse have a prenuptial or postnuptial agreement, your divorce may not be much of a hassle. The same may be true if your proposed divorce settlement is beneficial to you and your husband or wife. Ultimately, though, before divorcing a spouse who has dementia, it is critical to understand all your legal options.


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