Divorce Due to Mental Incapacity in Florida

If you are planning to file for divorce, you may be wondering if you must state or prove grounds for divorce. While divorce proceedings in the past could be based in fault, all states now have a “no-fault” path to the dissolution of marriage. Under Florida law, nearly all parties who file for divorce will plead that “the marriage is irretrievably broken.” This is the no-fault pleading for a divorce. However, in addition to the pleading that “the marriage is irretrievably broken,” a divorce in Florida can also be granted due to the “mental incapacity of one of the parties.”

How does Florida law define mental incapacity in this context, and what are the types of circumstances in which this pleading might be used in a divorce case? Our Florida divorce lawyer can provide you with more information.

Florida Law on Divorce and the Mental Incapacity of One of the Parties

Under Section 61.052(1)(b) of the Florida Statutes, “mental incapacity of one of the parties” is the only other possible pleading for a dissolution of marriage other than that “the marriage is irretrievably broken.” The statute makes clear that a dissolution of marriage based on the mental incapacity of one of the parties will only be allowed if “the party alleged to be incapacitated shall have been adjudged incapacitated” according to the requirements under Chapter 744 of the Florida Statutes “for a preceding period of at least 3 years.”

Under Section 744.331 of the Florida Statutes, the procedures to determine incapacity are complex and lengthy. An examining committee is appointed, a wide range of evidence is submitted, and a comprehensive examination of the allegedly incapacitated person is conducted that involves: a physical examination, a mental health examination, and a functional assessment. A determination of incapacitation under this chapter of the Florida Statutes is a very serious determination with significant legal consequences. Accordingly, such a determination is only made after careful assessment and consideration.

When is Mental Incapacity Pleaded for a Florida Divorce?

This type of pleading for a dissolution of marriage will typically only be used when the spouse who is incapacitated would not be able to participate in a divorce proceeding for an irretrievably broken marriage.

With this type of divorce proceeding, rather than the incapacitated spouse alone being served, the incapacitated spouse’s nearest blood relative or guardian must also be served with notice, the divorce petition, and summons. The guardian will then be responsible for “defend[ing] and protect[ing] the interests of the incapacitated party.” If the incapacitated party does not have an appointed guardian, the court will appoint a guardian ad litem.

Contact a Tampa Divorce Attorney Today for Help with Your Florida Divorce

If you have any questions about grounds for divorce in Florida or how to move forward with your petition for dissolution of marriage, it is essential to seek legal advice. As we discussed above, most divorces will not occur due to mental incapacity of one of the parties but rather due to the marriage being irretrievably broken. Our firm is here to assist you with your initial pleading and all requirements of the divorce process in Florida. Contact an experienced Tampa divorce lawyer at The Law Office of Laura A. Olson, P.A. today for help with your case.

Sources: 

leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.052.html

leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0744/Sections/0744.331.html