Divorcing an Incapacitated Spouse: How a Guardianship and Conservatorship Can Help

It can be necessary in some divorce proceedings to include a guardian and conservator if one or both of the spouses are unable to manage their personal affairs and property because of a clinically diagnosed impairment. This goes beyond the common complaint of divorcing couples, "My husband/wife is terrible with money!"

It goes to whether a spouse has the actual ability to understand the management of his or her personal affairs and finances. When one or both spouses are lacking this level of understanding, a judge in a divorce case will want to see that neither spouse is being taken advantage of in the divorce process, and a guardian and conservator is one way to install a safeguard.

Because both guardians and conservators have authority over the incapacitated spouse, subject to any limitations as set forth by the court, both can (and both are required, assuming that there is marital property) sign a divorce agreement binding the individual.

If a guardian and conservator have not already been appointed prior to the commencement of divorce proceedings, but it would be appropriate to do so, either individual, or someone not involved in the divorce case, could begin a petition for a guardianship and conservatorship over the incapacitated individual. If there is a guardianship and conservatorship in existence, the divorce case can proceed provided that the guardian and conservator are not the spouse, for obvious conflict of interest reasons. In that instance, someone else would need to be named guardian and conservator before the divorce would proceed.

Should you have any questions about guardianship or conservatorship, contact Attorney Jonathan R. Eaton, or call 508.655.5980 to schedule an initial consultation.

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