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MENTALLY INCOMPETENT SPOUSES AS PARTIES TO DIVORCE ACTIONS
1997 National Legal Research Group, Inc.

Eichner v. Dillon, 73 A.D.2d 431, 426 N.Y.S.2d 517, 542-43 (1980).

I. INTRODUCTION

As indicated by the enactment of the Americans with Disabilities Act, 42 U.S.C. 12101 et seq., society has begun to recognize that reasonable accommodations should be provided to disabled Americans so that they may enjoy the privileges associated with living in America. In the area of divorce, the Act helps insure that physically disabled people have equal access to the courts. With respect to mentally disabled people who desire to seek divorces, however, in many states equal access is not provided and mentally disabled people are forbidden from commencing divorce litigation. See generally Annotation, Power of Incompetent Spouse's Guardian or Representative to Sue for Granting or Vacation of Divorce or Annulment of Marriage, or to Make Compromise or Settlement in Such Suit, 32 A.L.R.5th 673 (1995).

This article discusses the rights of the mentally disabled as plaintiffs and defendants in divorce matters. The initial section discusses the dispute as to whether mentally incompetent spouses can file for divorce in the absence of controlling legislation. The subsequent section discusses states that have enacted statutes which specifically permit mentally incompetent spouses, or their representatives, to file divorce actions. Next, the article discusses whether mentally incompetent spouses may seek annulments of their marriages. Then, the article discusses the rights of mentally incompetent persons as defendants in divorce matters. Finally, the article concludes with an argument that states should permit mentally incompetent persons to engage in divorce litigation to the same extent as other litigants.

II. INCOMPETENT PERSONS' RIGHTS IN THE ABSENCE OF SPECIFIC STATUTES PERMITTING THEM TO FILE DIVORCE ACTIONS

The traditional common-law rule is that in the absence of a statute which specifically authorizes the filing of a divorce action by a mentally incompetent person, it is improper to permit a mentally incompetent person to file a divorce action through a representative. Courts reach this conclusion in spite of the existence of statutes which generally authorize the filing of civil actions by representatives of incompetents. The reason for the traditional rule is that divorce matters are too personal to permit guardians to file actions on the behalf of incompetents. Presumably, if legislatures intended to permit mentally incompetent persons to file divorce actions, the legislatures would have provided specific legislation authorizing these actions.

For example, in Murray v. Murray, 310 S.C. 336, 426 S.E.2d 781 (1993), the husband became ill and began receiving around-the-clock care. Eventually, he was placed in a nursing home and his son was appointed as the conservator and guardian of the husband's estate. By February 1990, when the wife filed an action for separate maintenance, the husband was totally disabled and incapacitated. The trial court awarded the wife one-third of the husband's property and required the husband to pay $400 per month in support to the wife. Subsequently, on behalf of the husband, the son filed an action for divorce. A guardian ad litem was appointed to represent the husband. The wife filed a motion to dismiss, arguing that an incompetent person could not file a divorce action through his representative. The trial court denied the motion to dismiss and permitted the husband to engage in the divorce action through his son as conservator and guardian. The wife appealed.

The Supreme Court of South Carolina overruled the decision by the trial court that the husband could file an action for divorce even though he was incompetent. The court noted that "[t]he majority rule is that, absent statutory authorization, a guardian cannot maintain an action on behalf of a mentally incompetent for the dissolution of the incompetent's marriage." 426 S.E.2d at 783. Furthermore, "[a]lthough there are statutes in practically every jurisdiction which give a guardian the general authority to maintain actions on behalf of an incompetent, it is generally held that these statutes do not apply to divorce actions unless the statute expressly so states." Id. "The theory underlying the majority view is that a divorce action is so strictly personal and volitional that it cannot be maintained at the pleasure of the guardian, even if the result is to render the marriage indissoluble on behalf of the incompetent." Id. at 784. Thus, as the court held, because there was no specific legislation authorizing the filing of a divorce action by an incompetent person, and a divorce matter is too personal, a divorce action cannot be maintained unless the plaintiff "is capable of exercising reasonable judgment as to his personal decisions, is able to understand the nature of the action and is able to express unequivocally a desire to dissolve the marriage." Id. The reason for the majority position was even more clearly stated in Freeman v. Freeman, 34 N.C. App. 301, 237 S.E.2d 857 (1977). In Freeman, the husband's mother attempted to file an action for divorce based upon one year's separation on behalf of the husband. The wife moved to dismiss the action on the grounds that a guardian did not have authority to bring an action for divorce on behalf of a ward. The trial court denied the motion to dismiss. In overruling the trial court's decision, the Court of Appeals of North Carolina wrote:

237 S.E.2d at 858 (quoting Annotation, Power of Incompetent Spouse's Guardian, Committee, or New Friend to Sue for Granting or Vacation of Divorce or Annulment of Marriage, or to Make a Compromise or Settlement in Such Suit, 6 A.L.R.3d 681, 683 (1966)). Hence, the major reason for the rule against suits by incompetent plaintiffs in divorce matters is that divorce matters are too personal to permit parties to engage in such litigation through representatives.

Similarly, in In re Marriage of Drews, 115 Ill. 2d 201, 503 N.E.2d 339 (1986), the husband sustained a severe and disabling head injury as a result of an automobile accident shortly after the parties' marriage. Subsequently, the wife moved out of the parties' home "and abandoned her husband to his parents' care." 503 N.E.2d at 340. The husband's mother obtained rights as guardian of the husband's estate and person. The mother filed an action for divorce on the grounds of desertion and extreme and repeated mental cruelty. The wife moved to dismiss the action, claiming that the mother did not have standing to commence the action on behalf of the husband. The trial court granted the motion to dismiss, and the husband's mother appealed.

Just like the Supreme Court of South Carolina, the Supreme Court of Illinois held that an incompetent person may not file a divorce action through a guardian. Without discussing the soundness of its decision, the supreme court simply noted that the majority rule was that in the absence of a statute specifically authorizing the filing of an action for divorce, incompetents may not file such actions through guardians. Id. at 341. The court examined the statutes related to guardians, and concluded that because none of them "accord a guardian, limited or plenary, the standing to maintain an action for dissolution of a ward's marriage," there was no authority permitting such an action. Id. at 342.

For other cases where the court has held that in the absence of statutory authority an incompetent person has no ability to obtain a divorce, see Cox v. Armstrong, 122 Colo. 227, 221 P.2d 371 (1950); Sternberg v. Sternberg, 203 Ga. 298, 46 S.E.2d 349 (1948); State ex rel. Quear v. Madison Circuit Court, 229 Ind. 503, 99 N.E.2d 254 (1951); Johnson v. Johnson, 294 Ky. 77, 170 S.W.2d 889 (1943); Kuta v. Kuta, 154 Neb. 263, 47 N.W.2d 558 (1951); Boyd v. Edwards, 4 Ohio App. 3d 142, 446 N.E.2d 1151 (1982); and State ex rel. Robedeaux v. Johnson, 418 P.2d 337 (Okla. 1966).

In contrast to the majority rule, some of the more recent opinions that have considered this issue have determined that an incompetent party may file a divorce action through a guardian. They reached this conclusion because the rationale for the traditional rule is no longer valid. Essentially, guardians are now empowered to make many personal decisions for wards. For example, guardians may decide, on behalf of wards, whether to accept medical care. Therefore, guardians should be permitted to make other personal decisions, such as whether to file divorce actions. One court which recently reached this conclusion was the Court of Appeals of Arizona in Ruvalcaba v. Ruvalcaba, 174 Ariz. 436, 850 P.2d 674 (Ct. App. 1993). In Ruvalcaba, after a 20-year marriage, the wife fell off of a horse and suffered a severe head injury. Initially, the fall sent the wife into a coma. The wife later emerged from the coma, however. The wife continued to suffer from amnesia, and the trial court determined that she was incapacitated when she filed for divorce. The wife filed this divorce action through her mother, who was appointed her permanent guardian, on the grounds that the marriage was irretrievably broken. 850 P.2d at 676. The husband filed a motion to dismiss, arguing that, in Arizona, a guardian may not file an action for dissolution on behalf of a ward. The trial court determined that a guardian may not file a divorce action on behalf of a ward, and the wife's mother appealed.

The trial court's decision to refuse to permit the filing of the action by the wife's mother was overruled. The court recognized that the majority rule was that courts should not permit incompetent plaintiffs to file divorce actions. Id. at 680. The court wrote, however, that the majority rule was based upon a "truism" that a decision to enter into a divorce proceeding is so personal that a court should not permit a guardian to file the action on behalf of a spouse. Id. at 681. The court stated that a bigger problem results from "the inequity that is created by leaving an incompetent spouse captive to the whims of the competent spouse." Id. Then, the court of appeals compared the decision to enter into a divorce proceeding to the decision to refuse medical treatment. "If an incompetent's right to refuse medical treatment is not expunged by physical or mental impairment, surely an incompetent's right to petition for dissolution of marriage is similarly not destroyed by physical or mental incapacity." Id.

Hence, there are two major reasons for the minority position that regardless of specific legislation authorizing such actions a guardian should be able to file a divorce action on behalf of a ward. First, the incompetent person should not be "captive" to the competent person. The potential for abuse in this circumstance is clear. For example, in In re Marriage of Drews, 115 Ill. 2d 201, 503 N.E.2d 339 (1986), the competent spouse had sole possession of substantially all of the parties' marital property. Thus, the decision by the Supreme Court of Illinois that the incompetent spouse could not file a divorce action was particularly devastating to the incompetent spouse in Drews. Second, courts and legislatures have recently empowered guardians to make many personal decisions for wards, such as decisions concerning medical treatment. Why should divorce actions be treated differently?

Most of the recent decisions that have adopted the minority/modern view have focused on the rationale that divorce actions are no more personal than many other decisions made by guardians. For example, in Nelson v. Nelson, 118 N.M. 17, 878 P.2d 335 (Ct. App. 1994), the wife suffered from Alzheimer's disease, and was declared mentally incompetent. Subsequently, she was placed in the guardianship of her son from a prior marriage. On behalf of the wife, the son filed an action for divorce. The husband moved to dismiss the action, arguing that because the wife was incompetent she could not verify the petition. The trial court granted the motion to dismiss the action, and the wife appealed.

The Court of Appeals of New Mexico reversed the decision of the trial court to dismiss the action because the wife was incompetent. The court noted that the trial court had followed the majority rule. The court recognized, however, that "[j]urisdictions deciding this issue have increasingly adopted the minority view." 878 P.2d at 339. The court believed that the rationale for the minority view was more compelling. Id. at 341. As the court stated:

Id. at 338-39 (citations omitted). Hence, because personal decisions are frequently made by guardians, guardians should be permitted to file divorce actions on behalf of wards.

For additional cases illustrating the minority view, see Hopson v. Hopson, 257 Ala. 140, 57 So. 2d 505 (1941); Campbell v. Campbell, 242 Ala. 141, 5 So. 2d 401 (1941); In re Marriage of Ballard, 93 Or. App. 463, 762 P.2d 1051 (1988); Wahlenmaier v. Wahlenmaier, 762 S.W.2d 575 (Tex. 1988); and In re Marriage of Gannon, 104 Wash. 2d 121, 702 P.2d 465 (1985).

III. STATES WITH STATUTES THAT AUTHORIZE THE FILING OF DIVORCE ACTIONS BY INCOMPETENT PARTIES

A small minority of states have adopted statutes which have been interpreted to permit divorce actions on behalf of incompetent spouses. A good example was presented by the recent case of Vaughn v. Guardianship of Vaughn, 648 So. 2d 193 (Fla. Dist. Ct. App. 1994). In Vaughn, the district court of appeal recognized that Florida courts had repeatedly held that actions may not be filed on behalf of incompetent persons. Scott v. Scott, 45 So. 2d 878 (Fla. 1950); Wood v. Beard, 107 So. 2d 198 (Fla. Dist. Ct. App. 1958); Cohen v. Cohen, 346 So. 2d 1047 (Fla. Dist. Ct. App. 1977). Furthermore, the district court of appeal noted that the position adopted by these Florida courts represented the majority view. Vaughn v. Guardianship of Vaughn, 648 So. 2d at 194. In 1971, however, the Florida Legislature adopted no-fault divorce provisions. In addition, in 1989, the Legislature adopted Fla. Stat. Ann. 744.3215. Under 744.3215(4)(c), a guardian had the right to "[i]nitiate a petition for dissolution of marriage for the ward." Vaughn v. Guardianship of Vaughn, 648 So. 2d at 195. Thus, as of 1989, a divorce action could be filed on behalf of an incompetent spouse.

Likewise, in Smith By and Through Lazorshak v. Smith, 125 Mich. App. 164, 335 N.W.2d 657 (1983), the parties were married for almost 20 years before the wife suffered a fall at the parties' residence. The wife's daughter was appointed temporary guardian for the wife, and the wife began to reside at the daughter's home. The guardian brought an action for divorce on behalf of the wife in Michigan. Approximately two weeks later, the court determined that the wife was mentally incompetent. The husband moved to dismiss the wife's claim on the grounds that the wife did not have the "capacity to sue." 335 N.W.2d at 658. The trial court granted the husband's motion to dismiss, and the wife appealed.

The decision by the trial court that the wife could not bring an action for divorce through her guardian was reversed on appeal. The court of appeals noted that under prior authority an incompetent party could not commence an action through a guardian. Id. Nonetheless, a court rule in Michigan, which was enacted in 1963, clearly stated that "[a]ctions for divorce and separate maintenance" could be brought by a guardian on behalf of an incompetent person. Id. Therefore, given the language of this rule, it was somewhat surprising that the trial court could have concluded that there was no cause of action on behalf of a ward. See also In re Palmer, 755 S.W.2d 5 (Mo. Ct. App. 1988) (court held that a guardian may file a dissolution action on behalf of a ward (citing Mo. Ann. Stat 475.091(2) (West 1986))); Cohn v. Carlisle, 310 Mass. 126, 37 N.E.2d 260 (1941) (pursuant to statute, a guardian may file an action for divorce on behalf of an incompetent person).

IV. ANNULMENT ACTIONS

As noted in Section II, the general rule is that incompetent spouses may not file divorce actions. In most states, however, an incompetent party may file an action to annul a marriage. The reason for the distinction is simple and twofold. First, in most states, a party may not file for divorce on the grounds that he or she is mentally incompetent. In contrast, a party may file an annulment action on the grounds that he or she was mentally incompetent at the time that he or she entered into the marriage. Obviously, if mental incompetence is grounds for an annulment, then a mentally incompetent person must be able to file an action for an annulment.

For example, in Knight v. Radomski, 414 A.2d 1211 (Me. 1980), the husband was struck by an automobile prior to the parties' marriage. As a result, the husband suffered severe brain damage. Shortly thereafter, the husband's father was appointed conservator of the husband's estate. Several years later, the husband became romantically involved with his psychologist. The psychologist, however, was married to a third party. On the spur of the moment, with the husband's consent, this third party went to the Dominican Republic to obtain a quick divorce. At noon on March 28, 1978, the husband's father was formally appointed permanent guardian of the husband. At 1:30 p.m. on the same day, the wife and the incompetent husband were married.

On behalf of the husband, the husband's father filed an action for an annulment on the grounds that the husband was incompetent at the time of the marriage and that no notice was given to the husband's father, the marriage license was procured by fraud, and the wife was not validly divorced from her prior husband. Id. at 1212. The trial court refused to grant the annulment, and the husband's father appealed.

On appeal, the Supreme Judicial Court of Maine held that "a guardian of an incompetent has standing to bring an annulment action . . . on behalf of the ward." Id. at 1213. In entering this decision, the court wrote that "[s]uch standing is inherent in the guardian's responsibility for protecting the rights of the ward." Id. The court reached this conclusion even though no statute specifically authorized the action. A statute did provide, however, that an insane person was incapable of entering into a marriage. Thus, in order to enforce this statute, it was necessary to permit an annulment by a guardian on behalf of an incompetent ward.

The second reason why courts have concluded that an annulment of a marriage is permissible but a divorce is not permissible, where the plaintiff is incompetent, is that grounds for divorce usually concern injuries that are personal to the parties. In contrast, grounds for annulment concern impediments to the marriage itself. One court which drew the distinction between annulment actions and divorce actions on this basis was the court in Jones v. Minc, 77 Wash. 2d 381, 462 P.2d 927 (1970), overruled on other grounds, 104 Wash. 2d 121, 702 P.2d 465 (1985). In Jones, the husband's first wife died when he was 82 years old. After the death of his first wife, the husband's mental health greatly deteriorated and he became unable to handle his financial affairs. Subsequently, the husband became involved with his housekeeper. A marriage license was issued in the husband's name and a name that was very similar to his housekeeper's name. At a time when the husband falsely believed that he was married to the housekeeper, he transferred title of the house and a substantial amount of personal property to the housekeeper. A friend of the husband was able to have these assets retransferred. Then, the husband and the housekeeper were married. Shortly thereafter, the husband's friend was appointed guardian of the husband's person, and a bank was appointed guardian of the husband's estate. The housekeeper managed to prevent the guardians from safeguarding the husband and his property. "She accompanied him whenever he left the house, intercepted telephone calls from his friends, and attempted to conceal his whereabouts." 462 P.2d at 928. Apparently, the housekeeper also had a previous history of marrying incompetent people merely to obtain access to her husbands' assets. Furthermore, she had previously been convicted of petty larceny and had been tried for murder of her employer. Id.

When the husband's friend filed an annulment action, the trial court concluded that the husband was capable of understanding the marriage ceremony and the marital contract. Id. Nonetheless, the court determined that the "the marriage was contracted by [the wife] for the sole purpose of obtaining [the husband's] property, and while [the husband] was under the complete domination of [the wife] and was influenced by her fraudulent misrepresentations." Id. For this reason, the trial court annulled the marriage, and the wife appealed.

The Supreme Court of Washington held that the trial court properly concluded that an annulment action could be brought on behalf of an incompetent ward. The supreme court distinguished a divorce action from an annulment action by noting that a divorce generally involves injuries that are personal to the parties, whereas the issue in an annulment is the validity of the marriage itself:

Id. at 929. Therefore, as the supreme court stated, because a divorce action is personal to the parties but the issue in an annulment is whether there were legal impediments to entering into the marital relationship, incompetent parties may bring annulment actions.

For other decisions where courts permitted annulment actions regardless of whether statutes specifically permitted incompetent spouses to bring such actions, see Ivery v. Ivery, 258 N.C. 721, 129 S.E.2d 457 (1963); Hunt v. Hunt, 56 Tenn. App. 683, 412 S.W.2d 7 (1966); and Counts v. Counts, 161 Va. 768, 172 S.E. 248 (1933).

The reasons for the distinction between marriage and annulment are not sound. The first reason is that statutes permit incompetent spouses to obtain annulments on the grounds of incompetency at the time of the marriage. Frequently, however, courts determine that spouses were competent at the time of the marriage but permit the annulment actions to proceed on alternative grounds. E.g., Jones v. Minc, 77 Wash. 2d 381, 462 P.2d 927 (1970), overruled on other grounds, 104 Wash. 2d 121, 702 P.2d 465 (1985) (court permitted annulment action to proceed on grounds of fraud). Thus, even without implied statutory authority, courts have been willing to allow incompetent spouses to obtain annulments. Therefore, where the plaintiffs are incompetent, it is unclear why courts demand statutory authority before they will permit divorce actions to proceed.

The second reason is that annulment actions involve the validity of the marriage, whereas divorce actions involve matters which are personal to the spouses. This reasoning is not correct, because most state statutes provide for grounds for annulment that are very personal to the parties. For example, the Virginia annulment statute provides, in relevant part:

Va. Code Ann. 20-89.1(b). As this statute indicates, parties may be granted annulments on the grounds of sexual indiscretions which result in pregnancies, conviction of a felony, or prostitution. In other words, fault-based annulments may be granted. Such annulments are not any less personal than divorces on the grounds of adultery, abandonment, or indignities. Thus, because annulments often involve personal matters, there is no reason to permit annulments but not divorces where parties are incompetent.

V. RIGHTS OF INCOMPETENT SPOUSES AS DEFENDANTS

It is beyond cavil that incompetent spouses may be defendants in divorce matters. The reason for this rule is that divorce statutes provide that insanity is a ground for divorce. E.g., N.C. Gen. Stat. 50-5.1 (1983). The issue that is often litigated in divorce matters where the defendant is incompetent is whether the defendant had the capacity to engage in the conduct which led to the application for the fault-based divorce.

If the conduct which caused the divorce resulted from the defendant's mental incapacity, the divorce should not be granted. For example, in Jumper v. Jumper, 240 Pa. Super. 99, 302 A.2d 411 (1976), the parties were married for approximately 28 years when the husband filed an action for divorce on the grounds of indignities. After the divorce was filed, the court appointed a guardian to represent the incompetent wife. Essentially, the husband claimed that for several years, the wife had engaged in a course of conduct of hatred towards the husband and the parties' children. Following hearings, the trial court held that "the acts complained of by [the husband] as constituting indignities were committed while [the wife] suffered mental derangement or mental illness." 302 A.2d at 413. Hence, the trial court refused to grant the fault-based divorce, and the husband appealed. The Superior Court of Pennsylvania affirmed the trial court's decision that the wife's incompetency was a defense to the action for divorce based upon indignities. In entering this decision, the court stated:

Id. at 414. Hence, if a spouse's mental incapacity prevents the spouse from having the state of mind necessary to establish a fault-based divorce, the divorce should not be granted.

The court considered a similar issue in Morrison v. Morrison, 395 So. 2d 909 (La. Ct. App. 1981). In Morrison, the parties sued each other for "separation" in Louisiana on the grounds of cruel treatment. In making her argument that she was entitled to a separation based upon cruelty, the wife cited an incident "in which the couple engaged in an argument which culminated in [the husband] tearing [the wife's] clothes off and physically ejecting her from the house when she threatened to leave with the children." Id. at 910. The husband alleged that he was entitled to a cruelty-based divorce because the wife allegedly constantly made unfounded accusations against the husband. The record indicated that these false accusations resulted because

Id. Thus, the wife's false accusations resulted from her paranoid condition. Therefore, the trial court said that she could not be held responsible for her cruel acts, and this decision was affirmed by the Court of Appeal of Louisiana, Second Circuit. See also Dolese v. Dolese, 517 So. 2d 1279 (La. Ct. App. 1987) (finding that husband suffered from mental incapacity sufficient to excuse him from fault was adequately supported by evidence regarding his periodic treatment for mental problems).

In addition, even if the defendant is incompetent, if the alleged acts occurred while the defendant was competent, the court may award a fault-based divorce against the defendant spouse. The court entered this decision in Simpson v. Simpson, 716 S.W.2d 27 (Tenn. 1986). From the beginning of the parties' marriage in Simpson, the situation was quite rocky. Throughout the marriage, the wife was employed while the husband "attended six different colleges without obtaining a degree." Id. at 27. At the parties' divorce proceeding, the wife testified that the husband "told her that she was dumb, unattractive, called her a `bitch' and threatened to `push her face in.'" Id. at 28. She also stated that he constantly criticized her cooking and housekeeping. Furthermore, the wife testified that he frequently called her at work to complain about things he believed that she had done wrong. According to the wife, the husband repeatedly threatened physical abuse against her, and committed various acts of mental abuse, including threatening to shoot her with his pistol Id. Based upon these and other facts, the wife filed a complaint for divorce on the grounds of cruel and inhuman treatment.

The most important testimony was presented by the psychiatrist. The psychiatrist stated that the husband was suffering from paranoid schizophrenia, and that the husband had probably suffered from this disease since his early twenties. The psychiatrist also indicated, however, that at times the husband could control his behavior. Id. at 30. The trial court dismissed the wife's complaint, and the wife appealed. The Court of Appeals of Tennessee reversed the decision of the trial court and awarded the wife a divorce.

On appeal, the Supreme Court of Tennessee held that the wife was entitled to a divorce. In reaching this conclusion, the court first held that when a defendant asserts insanity as a defense to a fault-based divorce, the defendant "must prove that at the time of such conduct, as a result of mental disease or defect, he or she lacked sufficient capacity either to appreciate the wrongfulness of his or her conduct or the volition to control his or her acts." Id. at 33. The court noted that because the medical evidence indicated that a typical paranoid schizophrenic has periods of lucidity, the husband failed to meet his burden of proving that he could not control himself at the time he or she committed his acts of cruelty. Id. Hence, the rule is that even if a defendant's incompetence would otherwise excuse his cruel acts, if he or she fails to prove that he committed the acts during a period when he or she was unable to control himself or herself, the defendant's incompetence will not prevent the fault-based divorce action from proceeding.

Similarly, in Butler v. Butler, 19 Ohio Misc. 2d 1, 482 N.E.2d 998 (C.P. 1984), the wife filed an action for divorce, and the husband moved to dismiss the wife's action on several grounds, one being that the husband's incompetence barred the divorce decree. It appeared, however, that the husband's aggressions occurred prior to the date that he became incompetent. For this reason, the court held that the wife could proceed with her divorce action. "The law is quite clear that while the court may not grant a divorce where the acts of parties charged were due to lack of mental capacity, a divorce may be granted against an incompetent spouse for aggressions committed while sane." 482 N.E.2d at 999.

Some states have concluded, based upon interpretations of their statutes, that mental incapacity is not a defense to a fault-based action. In Pajak v. Pajak, 56 N.Y.2d 394, 452 N.Y.S.2d 381 (1982), the Court of Appeals of New York entered this holding because the Legislature had not specifically provided for this defense. In Pajak, following a marriage of approximately 16 years, the husband filed an action for divorce on the grounds of cruel and inhuman treatment. According to the findings of the trial court, the husband had solid grounds for his complaint:

452 N.Y.S.2d at 381. Thus, the wife committed various acts of cruelty which affected the physical well-being of the husband. For this reason, the trial court awarded a fault-based divorce to the husband and disregarded the wife's assertion that her mental illness was a defense to the divorce action. This decision was affirmed by the appellate division, and the wife appealed to the court of appeals.

The court of appeals agreed with the lower courts' interpretation that the wife's mental illness was no defense to the divorce action. The court of appeals noted that 171 of the Domestic Relations Law lists several defenses for claims for divorce on the grounds of adultery, but lists no defenses to claims for divorce on the grounds of cruel and inhuman treatment. Id. at 382. As the court wrote, "[t]his provides strong indication that the failure of the Legislature to specify the defense of mental illness in an action for divorce of this nature was not a matter of mere legislative oversight." Id. Hence, because the Legislature had not specifically provided that mental incapacity was a defense to a divorce action on the grounds of mental cruelty, no such defense existed.

The court in Kuester v. Kuester, 633 S.W.2d 281 (Mo. Ct. App. 1982), reached the same conclusion as the New York Court of Appeals, but for a slightly different reason. In Kuester, the parties were married for 34 years before the wife developed mental problems. As the trial court noted, the wife stopped leaving the parties' residence and cut off all social contact with neighbors and friends. Furthermore, bizarre as it may seem, the wife removed all of the furniture in the parties' residence and placed it in the garage. Also, the wife removed all of the doors and woodwork in the house and placed these items in the garage. Additionally, the wife painted over most of the windows and began wearing clothes belonging to her daughter and her husband. Id. at 282. Unsurprisingly, the husband filed an action for divorce, but the wife claimed that the marriage was not irretrievably broken. The wife also claimed that her conduct resulted from her mental illness. The court held that the marriage was irretrievably broken, and awarded a divorce to the husband. The wife appealed.

The wife claimed on appeal that her mental illness was a defense to the divorce action. The Missouri Court of Appeals noted, however, that legislature of Missouri had directly abolished the defense of insanity. Thus, the wife could not claim that her mental illness was a defense to the divorce action. Id. at 284.

As the above authority indicates, while mental incapacity will not prevent a party from being a defendant in a divorce matter, it may act as a defense to a request for a fault-based divorce. Nonetheless, practitioners should consult the relevant statutes in order to determine if (1) an argument may be made that the legislature impliedly intended to prevent the defense of mental incapacity by failing to list this defense in the relevant divorce statute, or (2) the legislature has specifically repealed the defense of mental incapacity.

VI. CONCLUSION

As noted in Section II, the majority rule is that incompetent spouses may not file claims for divorce. See generally Annotation, Power of Incompetent Spouse's Guardian or Representative to Sue for Granting or Vacation of Divorce or Annulment of Marriage, or to Make Compromise or Settlement in Such Suit, 32 A.L.R.5th 673 (1995). A substantial minority of courts have concluded otherwise, even without statutory direction. E.g., Hopson v. Hopson, 257 Ala. 140, 57 So. 2d 505 (1941); Campbell v. Campbell, 242 Ala. 141, 5 So. 2d 401 (1941); In re Marriage of Ballard, 93 Or. App. 463, 762 P.2d 1051 (1988); Wahlenmaier v. Wahlenmaier, 762 S.W.2d 575 (Tex. 1988); In re Marriage of Gannon, 104 Wash. 2d 121, 702 P.2d 465 (1985). The majority rule is defended on the grounds that divorce matters are so personal to the parties that incompetent plaintiffs should not be entitled to bring actions for divorce through guardians.

There are five strong arguments against the majority position. First, there are numerous actions which may be brought by incompetent parties which are very personal to the parties. A good example, discussed in Section IV of this article, is an action for an annulment. E.g., Knight v. Radomski, 414 A.2d 1211 (Me. 1980). Thus, until courts can draw specific and relevant distinctions between divorce actions and other personal actions, the argument that incompetent spouses should not be able to file divorce actions because of the personal nature of such actions is not sound.

Second, most states have adopted statutes which permit incompetent persons to file claims through guardians. These statutes do not make exceptions for divorce actions. Hence, it cannot be argued that legislatures intended to prevent actions for divorce from proceeding. In fact, the modern view of legislatures is that parties should have less difficulty in obtaining divorces. For this reason, states have adopted no-fault divorces.

Third, the argument that an incompetent spouse should not be able to obtain a divorce because divorce actions are personal to the parties simply begs the question: Why should an incompetent party not be able to obtain a divorce simply because the matter is personal to the party and his or her spouse? It appears that courts that conclude that incompetent spouses may not file for divorce have not addressed this question. For example, in Freeman v. Freeman, 34 N.C. App. 301, 237 S.E.2d 857 (1977), in discussing the majority position, the court stated:

237 S.E.2d at 858 (quoting Annotation, Power of Incompetent Spouse's Guardian, Committee, or New Friend to Sue for Granting or Vacation of Divorce or Annulment of Marriage, or to make a Compromise or Settlement in Such Suit, 6 A.L.R.3d 681, 683 (1966)). In other words, the court simply states that because a divorce matter is personal, incompetent parties should not be able to obtain divorces. The court provides no rationale for this belief. Hence, the personal nature of a divorce probably should not prevent a party from filing a divorce action.

A fourth argument in favor of the minority view is that it is generally improper to discriminate against people simply because they are incompetent. A party may be too incompetent, perhaps due to age or illness, to manage his or her own affairs. However, that party may still be able to express a desire to obtain a divorce. In such circumstances, that party should be able to obtain a divorce.

Finally, if a plaintiff is prevented from obtaining a divorce due to mental incompetency, there is a tremendous potential for abuse by the other party. A good example was provided by the case of Jones v. Minc, 77 Wash. 2d 381, 462 P.2d 927 (1970), overruled on other grounds, 104 Wash. 2d 121, 702 P.2d 465 (1985), where a woman, who had been previously tried for murder and larceny, had developed a habit of marrying elderly men simply to obtain access to their assets and then neglecting them until they died. Courts should not assist or encourage such activity by preventing incompetent spouses from obtaining divorces. Rather, courts should help end these abusive relationships.

Despite these policy reasons, there will admittedly be situations where filing a divorce action is not in the incompetent spouse's best interests. For instance, the incompetent spouse may desire a divorce for reasons which are deluded and irrational. Alternatively, the incompetent spouse's guardian may be a close relative who desires the divorce for reasons of personal advantage. Fear of these types of fact situations is one of the primary reasons why some legislatures and courts are reluctant to allow incompetent persons to file for divorce.

These concerns, however, can be addressed by less drastic means than denying the incompetent spouse standing ever to seek a divorce. Where the incompetent spouse desires a divorce for irrational reasons, the spouse's guardian can exercise independent judgment and refuse to file the action. Where the guardian seeks a divorce for improper reasons, other interested parties retain the right to file a petition in probate court to have the guardian removed. In both situations, if the first line of defense against abuse is not successful, the divorce court should retain the right to deny a divorce which is not in the incompetent person's best interests. These safeguards can prevent the filing of divorce actions which would be damaging to the incompetent plaintiff, while still permitting incompetent spouses to terminate marriages which are abusive or otherwise harmful to the plaintiff's long-term best interests.

In short, when a court faces a situation whereby an incompetent spouse desires to obtain a divorce, it should adopt a best interests test for determining whether a divorce should be granted. Assuming that grounds for a divorce exist, in determining the spouse's best interests the court should consider (1) whether it can be determined that the spouse desires the divorce, (2) whether a divorce will end an abusive relationship, (3) whether the incompetent spouse will be able to support himself or herself after the divorce, and (4) any other fact which is relevant in the particular circumstances in each case. The court should certainly appoint a guardian for the incompetent spouse, and the court should give appropriate weight to the guardian's opinion on each of these factors.

This best interests test is no panacea, and does not guarantee that all incompetent spouses will have rights at divorce equal to competent spouses. Nonetheless, the best interests test appears to draw a balance between those who believe that incompetent spouses should never be able to seek a divorce and those who believe there should be absolutely no distinction in divorce matters between incompetent and competent spouses. It permits incompetent spouses to obtain divorces in appropriate circumstances while still recognizing the court's authority to deny a divorce when the divorce is not in the best interests of the incompetent plaintiff. Over the long term, this balancing test is the best method for accommodating the legitimate interests of both spouses in a situation where one party has become incompetent.

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