Client Compass, Divorce Law Monitor

Divorcing an Incapacitated Spouse

July 14, 2023


Mental health issues during a divorce are unfortunately common. Untreated mental illness may be the cause of the divorce, or the stress of the divorce process may exacerbate a previously undiagnosed or inadequately managed mental illness. The stress of the demise of a marriage and the divorce process is often overwhelming to even the most levelheaded, rational, and composed person.

But what happens when a spouse becomes truly mentally incapacitated prior to or during a divorce? Clients often ask whether they can still proceed with the divorce from their incapacitated spouse. The answer is unequivocally yes.

An incapacitated person is someone with a clinically diagnosed condition that prevents them from making or communicating decisions about their physical health, safety, or care, which may be the result of a stroke, physical accident, or even from long-standing mental illness But, incapacity is more than just a diagnosis of a mental illness – it requires a finding that the condition keeps the spouse from understanding the nature and consequences of his/her actions and participating in the divorce process.

When someone becomes incapacitated, a petition must be filed with the court for the appointment of a guardian and/or conservator of the incapacitated spouse If appointed, a guardian is permitted to take care of and make decisions for the incapacitated person regarding their physical health and welfare. A conservator is permitted to take care of and make decisions regarding the incapacitated person’s property and financial affairs.

If a spouse plans to or is in the process of divorcing an incapacitated person, it is not appropriate for the spouse to be appointed as the guardian or conservator of the incapacitated person. Rather, a neutral guardian should be appointed for the incapacitated spouse regarding the divorce matter. This guardian is often referred to as a “Section 15 Guardian” and is appointed to allow the divorce matter to proceed despite the incapacitated spouse’s inability to appreciate the nature and consequences of their actions or participate in the divorce process.

Pursuant to M.G.L. Chapter 208 section 15, “If during the pendency of an action for divorce, the defendant is incapacitated by reason of mental illness, the court shall appoint a suitable guardian to appear and answer in like manner as a guardian for an infant defendant in any civil action may be appointed. The compensation of such guardian shall be determined by the court, and, together with his necessary expenses, shall be paid by the plaintiff if the court so orders.”

In order to have a Section 15 guardian appointed in a divorce action, the spouse must file a motion with the court asking for the appointment. The court will appoint a neutral guardian to stand in place for the incapacitated spouse in the divorce action. The Section 15 guardian has the power, just as the incapacitated spouse would have if they were not incapacitated, to file pleadings, answer and serve discovery, appear on behalf of the incapacitated person in court, conduct settlement discussions, enter into agreements binding the incapacitated spouse, and participate in a trial (offering evidence, examining witnesses, etc.). The power of the Section 15 guardian is quite broad, allowing for the divorce to proceed.

In addition to having a Section 15 guardian appointed, if the incapacitated spouse has engaged in financially risky behaviors, has threatened to dissipate assets, or has, in fact, dissipated assets, the spouse may also want to consider filing a motion with the divorce court to have the incapacitated spouse’s assets frozen to prevent further dissipation. In order to freeze the incapacitated spouse’s assets, the spouse needs to file a motion with the court seeking to attach those assets by trustee process pursuant to Rule 4.2 of the Massachusetts Rules of Domestic Relations Procedure. The court can issue an order to the holder of those assets (for instance, a bank or investment company), prohibiting the holder of those assets from selling, transferring, or otherwise disposing of any and all property or assets owned by the incapacitated spouse, individually, jointly, or in common with any other person or entity. Once the account is attached by trustee process, the incapacitated spouse cannot move funds out of that account without a further order from the court allowing them to do so. This can be a particularly effective tool to prevent dissipation of the marital estate by the incapacitated spouse during the pendency of the divorce.

While dealing with an incapacitated spouse can be particularly challenging in a divorce, there are procedures and protections available to the divorcing spouse to allow them to proceed with a divorce and protect marital assets during the pendency of the divorce despite the incapacitation. It is important for the divorcing spouse of an incapacitated spouse to consult with an experienced divorce lawyer prior to filing for divorce to ensure the best protection and results.

receive news & alerts

Yes, I’d like to receive updates with firm news and insights that are relevant to me.