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Can someone suffering from dementia obtain a divorce?

| May 28, 2015 | Divorce

Older Americans are among the fastest-growing groups filing for divorce. Many such couples have much more substantial assets than younger couples, given that they have had decades’ more time to amass cash and investments.

Unfortunately, another implication of so-called “gray divorce” is that dementia is likely to enter the picture. When a person’s mental capacity is diminished by Alzheimer’s disease or a similar condition, does he or she have the right to get divorced?

That is an important question for a former New York real estate investor, who says he wishes to divorce his wife of 22 years. At the urging of his adult son, a court in Florida has declared the man partly incompetent in probate court due to dementia, though he has retained the right to file for divorce. However, in Florida a person declared mentally unfit must wait three years before getting divorced.

At stake in the case is the couple’s estimated $50 million estate. According to the terms of the couple’s prenuptial agreement, if they ever separate, but the husband is unable to divorce, the wife would be entitled to keep $10 million in cash and property. According to WPXI-TV, the court left the man the right to sue — and therefore divorce — at the request of the son. Meanwhile, his wife says the man is being manipulated by his children, whom she accuses of being driven by their future inheritance.

This case also involves charges of elder abuse on both sides. Though most gray divorces are not this complicated, this shows how divorce between older spouses can raise issues of probate law and other things that are unlikely to come up when the spouses are in their 20s, 30s or 40s.