If you’re facing a divorce and your spouse becomes incapacitated, you might be wondering, “Can you divorce an incapacitated spouse?” Incapacitation can result from various situations, such as a severe stroke, a debilitating mental breakdown, or illnesses like Alzheimer’s or Parkinson’s. In these cases, you may find yourself dealing with a partner who cannot effectively defend themselves in the divorce process. This situation can complicate the divorce proceedings and requires careful consideration of legal and ethical factors.
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 gain guardianship of your spouse’s estate during a divorce, you might be tempted to take all the assets for yourself.
Divorcing an Incapacitated Spouse: Legal Steps and Considerations
That scenario is unlikely to occur, and the courts would not permit it. However, if you’re already deep into negotiations or have a mediated settlement agreement, you can petition the probate court for guardianship. In this case, a Guardian ad Litem, who is an attorney, would step in to represent your incapacitated spouse’s interests. With this legal representation in place, you can proceed with the final steps of 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. 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.
Divorce Challenges When a Spouse Becomes Incapacitated
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.
Conclusion
Navigating a divorce when your spouse becomes incapacitated presents unique challenges, but it is possible to proceed with legal action. If you’re facing this situation, you may wonder, “Can you divorce an incapacitated spouse?” The answer is yes, with specific legal provisions in place. By petitioning the probate court for guardianship, a Guardian ad Litem can represent your spouse’s interests, allowing you to finalize the divorce while ensuring that all legal and ethical considerations are addressed. This process ensures that the divorce can move forward even under complex circumstances, offering a clear path for resolution.
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!
eBooks
If you want to know more about what you can do, CLICK the button below to get your FREE E-book:.
Other Articles you may be interested in:
- Incapacity Protection While Going Through a Divorce
- Planning For Incapacity: Powers Of Attorney and Advanced Directives In Texas
- Incapacity Before Your Divorce
- What to do when your divorce decree does not include a marital asset?
- What is mediation?
- What is Divorce and Family Law Mediation in Spring and Houston Texas?
- I Want a Texas Divorce but My Husband Doesn’t: What can I do?
- The Impact of Divorce on Children
- Do You Pay Taxes On a Divorce Settlement in Texas?
- 5 Misconceptions Regarding the Divorce Process
- Analyzing the Difference Between Contested and Uncontested Divorce in Texas
- Custodial and Noncustodial Parents: Answers to frequently asked questions
- How to handle a Texas divorce when you were married in another state
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
