Switch to ADA Accessible Theme
Close Menu
Orlando Divorce Lawyer
Free Initial Consultation ~ Hablamos Español 407-412-7041

Mental Incapacity and Ending a Marriage


If you are married to a person without mental capacity, it may be difficult to determine how to legally end the marriage. To be sure, you might have concerns about whether the court will be willing to grant a divorce if one of the parties is unable to consent to the terms of the divorce proceeding, will you actually be able to move forward with a divorce? Under Florida law, there is specific language concerning divorce and mental incapacity. However, depending upon the circumstances of the mental incapacity, it may be necessary to have the marriage voided or annulled instead of moving forward with a divorce case.

Situations in Which Mental Incapacity Arises in a Marriage

There are a number of different situations in which the matter of mental incapacity may arise in a marriage. For example, a person might never have had mental capacity based on a disability, or a person might have been diagnosed with Alzheimer’s disease or another form of dementia that has rendered that person mentally incapacitated. Similarly, a person might have sustained devastating injuries in a serious accident, regardless of that person’s age, which have rendered that person mentally incapacitated.

Date of the Mental Incapacitation 

For purposes of legally ending the marriage, it will be critical to determine whether that spouse lacked mental capacity at the time of the marriage, or whether that spouse became incapacitated during the marriage (in other words, did that person have the capacity to consent to the marriage in the first place)?

The distinction in the date of mental incapacitation is extremely important because it will determine whether the marriage will need to be voided (also known as annulled) or whether the spouse who is not mentally incapacitated will be able to file for and to get a divorce in Florida. If the spouse’s mental incapacity existed at the time of the marriage—meaning that the spouse could not have legally consented to the marriage—then Florida law says that the marriage is not lawful. In such a situation, it will be necessary to petition for an annulment. While Florida does not have a specific annulment statute, it is possible to have a marriage annulled by proving that it was never valid in the first place.

Divorce Following Mental Incapacity 

If a spouse becomes incapacitated after the date of the marriage, Florida law says that the mental incapacity is a reason to grant a dissolution of marriage. In Florida, to be eligible for a divorce, the party who files either must plead that the marriage is irretrievably broken (a “no fault” divorce), or must plead “mental incapacity of one of the parties.”

For a divorce to be granted following one of the spouse’s mental incapacity, that spouse “shall have been adjudged incapacitated . . . for a preceding period of at least three years.” In other words, a court must find the spouse to be mentally incapacitated, and that judgment must have been rendered at least three years prior to the divorce filing.

Contact an Orlando Divorce Lawyer for Help 

Do you have questions about divorce and mental incapacity? One of our Orlando divorce lawyers can help. Contact Anderson & Ferrin to learn more.


Facebook Twitter LinkedIn
  • facebook
  • twitter
  • linkedin

© 2019 - 2024 Anderson & Ferrin. All rights reserved.