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The Divorce Encyclopedia
Incompetence


Term Definition Incompetence - when a party becomes incapable of managing his or her affairs, usually for mental reasons.
Application in Divorce In general, the guardians of mentally incompetent people may not file for a divorce on behalf on the incompetent person. The reason for this is that divorce is held "too personal to permit guardians to file actions on behalf of incompetents."

A few states (including Florida) have statutes permitting divorce actions on behalf or incompetent people.

While mental incapacity does not prevent a party from being a defendant in a divorce action, it may act as a defense in a fault-based action. In actions where a mentally incompetent person is a defendant, the court normally appoints a guardian.

While incompetent people in general may not file divorce actions, an incompetent party may annul a marriage. In fact, grounds for annulling a voidable marriage include serious fraud or a party’s legal incompetence at the time of the marriage.

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