“Gray divorce” is not a term found in statute or case law. Rather, it is a term used to describe a divorce trend among older individuals. Gray divorce has been a widely referenced media topic of late. While much of the media discussion focuses on the potential negative financial impact on the elderly as they divide their retirement savings, other forums focus on the fact that as people get older, they are not willing to forego personal growth and fulfillment by staying in unhappy marriages. The impact and reasons for divorce among people over fifty are worthy of consideration, but the focus of this blog is to address the issue from the perspective of a domestic relations practitioner.
While an aggrieved spouse in a long-term marriage invariably questions the departing spouse’s mindset, a domestic relations practitioner should consider each party’s mindset. Ohio law does not prevent a divorce if one of the spouses is determined to be incompetent, but careful consideration is given when competence is questioned.
In Ohio, a probate court shall appoint a guardian for a person “who is so mentally impaired as a result of a mental or physical illness or disability or mental retardation, or as a result of chronic substance abuse, that is /she is incapable of taking proper care of him/herself of his property…” O.R.C. 2111.01 If a divorce action is filed after a spouse has been declared incompetent, service of the divorce papers must be made on the guardian. Conversely, a guardian may file for divorce on behalf of an incompetent ward. The guardian is then charged with ensuring that the incompetent spouse’s interests are adequately represented.
The process is more complicated in proceedings where a person’s capacity to take proper care of himself or property is questioned but the person has not been adjudicated as incompetent. Ohio law vests all adults with the right to direct their personal affairs according to their wishes, including divorce litigation. The Ohio Civil Rules permit a trial court to appoint a guardian ad litem to represent an adult only when the court has adjudicated the adult to be incompetent. The law requires that a competency hearing be held before a court treats a divorcing spouse as if they are mentally impaired or disabled. Only the probate court can determine a person’s competency. The probate court shall conduct a hearing during which a person alleged to be incompetent has the right to introduce independent expert evaluation on the issue of his/her competence. The guardian’s presence ensures that the incompetent spouse’s interests are adequately represented.
Suppose two spouses enter into a separation agreement, and one spouse later challenges the agreement based on competence. In that case, the party claiming incompetence must establish clear and convincing evidence that they were mentally incompetent when the agreement was signed. If a Court concludes that one of the spouses was incompetent at the time the agreement was entered into, the agreement may be set aside.
Ethical considerations
In some cases, couples may use the divorce process in an attempt to protect assets from being depleted by one of the spouse’s anticipated future medical needs. This raises significant ethical considerations for a domestic relations practitioner. Especially if one of the spouses is not competent. The issue then becomes whether the parties are indeed in agreement as to how to proceed.
Ensuring mental competence in divorces involving elderly spouses is critical to reaching a resolution that is fair, just, and equitable. Broaching the issue of competence requires sensitivity. However, in family law, legal advocacy often requires compassionate guidance.
If you have questions or concerns regarding gray divorce, contact Mary Sotera at 216-621-7860.