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Incapacity and Divorce

Mental incapacity is one of two grounds for divorce in Florida. Florida is a no-fault divorce state, meaning that specific fault grounds for divorce, such as adultery, need not be pled. The Petitioner must state generally that the marriage is irretrievably broken. However, there are some protections in place for the incapacitated spouse that must be observed when filing for divorce. Once a person has been adjudicated incapacitated, a three year protection period kicks in. During that time, a divorce action cannot be brought by the competent spouse. The reason for this policy is that those who are suffering from mental illnesses deserve protection and the opportunity to be cared for by those who are close to them. Once the three year protection period expires, the competent spouse may file for divorce and serve the pleadings on the incapacitated spouse’s guardian, who will defend and protect the interests of the incapacitated party. The competent spouse may be required to pay alimony. At any time, the incapacitated spouse may file for divorce through his or her guardian, so long as the court gives permission for the guardian to do so. Florida Statutes §61.052; §744.3215.

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