Question: My mother has been married three times: My father was her first and, after he died ten years ago, she had a disastrous two-year relationship with number two (a drunk) whom she divorced. Her third – and worst -- came four years ago when she was 75 and he was 54. He had nothing when they married in Las Vegas during a trip she paid for. When she began to slip mentally, he removed money from her accounts, cashed in her insurance and annuities, stuck her in a nursing home, and put her home up for sale. He has been living in the house and taking her Social Security and pension to live on. I was finally able to get appointed as her guardian by the court because she is incompetent. Can I get her divorced from this thief?

Answer: While it is relatively clear that a competent spouse may divorce an incompetent spouse in most states under circumstances set by state law, the question of whether an incompetent person can bring a divorce action is quite murky and depends on the law of the state where you live.

Until relatively recently, the courts in a majority of states would not allow a guardian to bring a divorce action on behalf of a mentally incompetent spouse because 1) Divorce is too personal a decision to be made by anyone other than the spouse, and 2) If competent, the individual might forgive the other spouse and not pursue the divorce.

However, citing a changing society, more courts are beginning to rule that since guardians are allowed to make important decisions for incompetents – such as terminating life support, handling economic and financial matters, and authorizing sterilization, an absolute rule that guardians should not be able to bring divorce actions is neither justified nor in the public interest. It would not be equitable, they say, to leave a competent spouse with absolute control over the marriage and finances without adequate legal recourse against potential physical, emotional or financial abuse of the incompetent spouse.

Some courts consider a clear demonstration by a spouse that he or she wanted a divorce before being declared incapacitated as a factor. Others have based their decisions on sufficiently broad legislation allowing a guardian to maintain a divorce action. And still others use the same guidelines and standards for divorce as they do in medical treatment cases with regard to surrogate decision-making and require an elevated degree of proof.

It would appear to us that not allowing an incapacitated person to seek a divorce through a guardian in some circumstances would effectively leave the incompetent spouse at the mercy of the competent spouse, thus depriving an incompetent spouse of the protections available to competent spouses.