Representative Divorce: Musings on Dissolving a Marriage Based on Legal Incompetence
| Publication year | 2019 |
| Author | Dawn Gray |
Dawn Gray
Dawn Gray has practiced family law for 35 years and has been a Certified Specialist in Family Law for 28 years. Since 1994, her practice has been dedicated to research and writing projects for family law and civil attorneys. She works with many family law attorneys throughout the state on their cases, doing research, drafting pleadings and appellate briefs. She is a past president of ACFLS and is currently on its Amicus committee. She is also a past member of FLEXCOM, serving as the Executive Editor of the Family Law News. She gives frequent presentations and continuing education classes on family law issues. Dawn is also the principal author of the 11-volume series "Complex Issues in California Family Law." She is a member of the editorial board of the California Family Law Monthly and a frequent contributor to family law publications throughout the state.
In the past century or so, life expectancy in our country has increased dramatically. As many baby boomers are aware, 60 is the new 40 and more people than ever before are working well into their 70s. With longer lives, many people enter into second and even third marriages later in life. However, living longer does not necessarily mean that our minds stay as healthy as our bodies. As we age, mental incapacity, including dementia in its many forms, can deprive us of our ability to manage the details of everyday life, while our bodies are still reasonably strong. We see this with aging parents and friends; their ability to deal with life's logistics slips gradually, even though they are still relatively active.
Unfortunately, there may come a time where an aging adult can no longer manage his affairs. If there is a capable spouse in the picture, he or she can take up the slack. If not, younger family members may step in and help, often taking over the day-to-day management of the aging adult's finances and assets. But what happens when that management includes the need for a divorce or legal separation? If the aging adult is no longer capable of managing his assets or communicating the necessary facts to justify a divorce based on irreconcilable differences and for whatever reason his representatives determine that a status judgment is advisable, can they obtain such a judgment over the other spouse's objection? That is the subject of this article.
Let's get the issue of motive out of the way first. Obviously, mental incapacity comes in all degrees. Someone can be incapable of managing her finances but be perfectly able to express a desire for a divorce; in such a situation, the court can grant a status judgment based on irreconcilable differences. Also, it sometimes happens that a spouse who initiated a divorce or legal separation based on irreconcilable differences becomes incapacitated during the proceedings; when that occurs, as discussed later in this article, the court may be unable to enter a status judgment. However, if a person is legally incapable of expressing the desire for a divorce or legal separation from the time the petition is filed, how can the attorney, let alone the court, determine if that person really wants to be divorced? Absent some proof of that desire prior to the onset of the incapacity, there is no easy answer to this question.
Particularly if the result of filing the action is that the party's legal representatives also stand to inherit his or her estate once the court enters judgment and divides community assets, it may be argued that they have a financial interest in ensuring that the marriage is terminated so that the other spouse does not receive the community assets upon the petitioning party's death. Proof of an actual conflict of interest may be sufficient to remove the representative. If there is a non-beneficiary available to act as guardian ad litem ("GAL"), having that person act will eliminate this as an issue. However, it is not always that clear. A practitioner may have a difficult time determining whose interests are really being served by the action and to what extent, if any, that issue is relevant to the case. Simply because the party's legal representative may gain financially from the division of the party's community property does not necessarily mean that the party would not also want the divorce. Also, often the representatives are family members, and there is no one else to bring the action on the party's behalf.
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In many cases, there may be no independent confirmation that the party himself wants a divorce and the "incapacity" may make it appear as if he or she remains fond of the other party. It can be extremely difficult to tell whether an incapacitated party is simply unable to object to family members' control or actually wants a divorce. Each practitioner must evaluate whether the possible motives of the party's legal representatives affects their decision to be involved in the case in the first instance. Once that hurdle has been overcome, can a legally incapacitated party actually get divorced solely through representatives?
A married person could not always divorce a permanently legally incapacitated spouse. Prior to the more "enlightened" statutory changes in the early 1900s allowing this as a ground for divorce, it was seen as cruel to allow a man to "put aside" his wife because she had an "incurable" mental illness.
Prior to the General Assembly's inclusion of 'incurable insanity' among the causes for divorce, this court held that insanity was not a legal ground for divorce. The following is from the opinion in Baker v. Baker: 'Insanity is no reason for dissolving the marriage. The statute does not make it one of the grounds for divorce, and surely no principle of justice or morality will justify the severance of the marital ties for any such cause. The judgment and conscience revolt at the thought that such a terrible affliction should be deemed cause for separating the wife from the husband. Divorces are granted not because of misfortune, but because of fault. It would be a barbarous code that would allow the wife to put aside the husband because stricken by such an awful calamity as the loss of reason.'1
It was not until 1941 that permanent incapacity - "incurable insanity" - was a ground for divorce in California.
Incurable insanity was not a ground for divorce in California until 1941, when that additional ground was added to the grounds for divorce stated in section 92 of the Civil Code. In section 108 of the Civil Code, also enacted in 1941, it was provided that a divorce on the ground of incurable insanity might be granted 'only upon proof' that the defendant had been incurably insane for a certain time and had been confined in a certain place 'under the provisions' of certain sections of the Welfare and Institutions Code. The confinement referred to in those sections is confinement under order of court. It thus appears that the Legislature excluded voluntary confinement or admission in its determination as to the proof that should be required.2
The addition of incurable insanity as a ground for divorce was seen as a humanitarian provision for the spouse "burdened" with a mentally incompetent partner, and the new ground for divorce was not considered to be fault-based. "Prior to the enactment making incurable insanity a ground for divorce, the existing grounds for divorce involved fault or wrongdoing on the part of the defendant. The new or additional ground of incurable insanity involved no element of fault of the defendant."3 However, this ground was gradually adopted by sister states as well.
Insanity is not generally recognized in any of the states of the United States as a ground for divorce unless made so by statute. By the year 1949 twenty-six states and territories of the United States had adopted such a statute (see 22 So.Cal. Law Rev. 494; 35 Cal.Law Rev. 104; Vernier, American Family Laws (1932), p. 60; 27 C.J.S., Divorce, p. 593, s 49; 17 Am.Jur. 228, §152); but, assertedly, 'for humanitarian reasons, the statutes making postnuptial insanity ground for divorce seem to have been subjected to a strict construction.' (113 A.L.R. 1254; cf. Dodrer v. Dodrer (1944), 183 Md. 413, 37 A.2d 919, 922, holding that placement in a private home but under supervision of state hospital met statutory requirement of confinement 'in an insane asylum, hospital, or other similar institution,' contra, see Finkelstein v. Finkelstein (1948), 88 Cal.App.2d 4, 198 P.2d 98.)4
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Until the early 1950s, Civil Code section 108 provided:
A divorce may be granted on the grounds of incurable insanity only upon proof that the insane spouse has been confined to an institution under the provisions of Chapter 1, Part 1, Division 6 of the Welfare and Institutions Code or under the provisions of Section 1026 of the Penal Code or Chapter 6, Title 10, Part 2 of the Penal Code, for a period of at least three continuous years immediately preceding the filing of the action and upon the testimony of a member of the medical staff of said institution that such spouse is incurably insane.
Duty to support. No decree granted on this ground shall relieve the spouse granted the divorce of any obligation imposed by law as a result of the marriage for the support of the spouse against whom the divorce is granted. It shall be alleged in the complaint and proved at the trial of the cause either that there is reasonable ability to support the insane spouse for the remainder of the life expectancy or that such insane spouse has property sufficient to provide support for the remainder of the life expectancy, and the court shall make such order for support, or require a bond therefor, as the circumstances require.
In Dribin, a supreme court majority held that the section's requirement of proof of the petitioning spouse's ability to support the...
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