What if my spouse is incapacitated?

Under F.S. 61.052, mental incapacity of a spouse is the only other basis for divorce. In order to qualify as “mentally incapacitated,” a person must meet the criteria stated in F.S. 744.331 for a minimum of three years. If these conditions are met, mental incapacity must be the basis for the divorce. In order to maintain due process of the law, F.S. 61.052 illustrates strict provisions described below.

“Notice of the proceeding for dissolution shall be served upon one of the nearest blood relatives or guardian of the incapacitated person, and the relative or guardian shall be entitled to appear and to be heard upon the issues.”

“If the incapacitated party has a general guardian other than the party bringing the proceeding, the petition and summons shall be served upon the incapacitated party and the guardian; and the guardian shall defend and protect the interests of the incapacitated party.”

“If the incapacitated party has no guardian other than the party bringing the proceeding, the court shall appoint a guardian ad litem to defend and protect the interests of the incapacitated party.”

” In all Dissolutions of marriage granted on the basis of incapacity, the court may require the petitioner to pay alimony pursuant to the provisions of s. 61.08.”

If there is adequate evidence supporting the need for a divorce, the guardian may begin dissolution proceedings on behalf of the incapacitated.

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