UPDATED: Divorce When a Spouse Has Dementia

 Posted on November 03, 2021 in Divorce Over 50

Originally published: January 17, 2018 -- Updated: November 3, 2021

UPDATE: In addition to considering the issues discussed below, a person will need to be sure to understand how issues such as property division or spousal maintenance will be addressed when divorcing a spouse with dementia. This will ensure that a spouse who cannot provide for themselves will have the necessary financial resources, while also making sure the other spouse will have the ability to meet their own needs going forward.

Spouses have the right to the equitable division of marital property when they get divorced. Even if a spouse has dementia and is unable to manage their own finances, they will still have the right to receive their fair share of the marital estate. The other spouse and a person serving as the guardian or representative of the spouse with dementia may be able to negotiate a workable property settlement. For example, financial assets may be allocated to the spouse with dementia to ensure that they will be able to reside in a nursing home and receive the proper care, while the other spouse may retain ownership of the family home, a vehicle, or other property.

Depending on whether property may be divided in a way that provides a spouse with the necessary financial resources, a person who has dementia may also have the right to receive spousal support that will allow them to meet their needs. If the other spouse will continue to work and earn an income, they may be required to pay a certain percentage of their income to the other spouse’s guardian, who will use these funds to address the person’s ongoing expenses.

If you have questions about how to handle property division, spousal support, or other issues when divorcing a spouse with dementia, contact our St. Charles divorce lawyers at 630-584-4800 and set up a free consultation today.

When a spouse enters the advanced stages of dementia, his or her marital relationship fundamentally changes. The healthy spouse becomes a caregiver or hires a healthcare professional to perform the duties. Either way, the spouses’ relationship as partners is over. Unfortunately, a marriage to a dementia patient can deteriorate to the point that the spouses' divorce. How a court considers a divorce case involving someone with dementia depends on which party is initiating the divorce.

Divorcing a Dementia Patient

Spouses of dementia patients may have mixed feelings about whether they should stay in their marriages. Most people feel they should remain loyal to their spouses, regardless of the mental or physical deterioration they suffer. However, having a spouse with dementia may not feel like being married at all:

• The patient may no longer recognize his or her spouse or be capable of having a coherent conversation;
• The patient can become verbally abusive, paranoid, and argumentative; and
• The spouses may be unable to live together because of the patient’s special needs.

Putting aside questions of morality, the spouse of a dementia patient can legally file for divorce. Illinois is a no-fault divorce state, meaning that a spouse needs only to cite irreconcilable differences as a reason for the divorce. The divorce may take longer than normal if the spouse with dementia either refuses to or is incapable of consenting to the divorce.

Dementia Patient Asking for Divorce

People with dementia are allowed to file for divorce if they can demonstrate that they have the mental capacity to understand their decision. When a person is not of sound mind to divorce, an appointed guardian who is not the other spouse can file on behalf of him or her in certain cases:

• A guardian may continue a divorce process that started before his or her ward became mentally disabled; or
• A guardian may initiate a divorce if he or she can prove that the divorce is in the ward’s best interest.

When deciding whether to grant the divorce, the court will consider the benefits and risks of the action, as well as its best guess of the wishes of the dementia patient.

Deciding on Divorce

People in the advanced stages of dementia can no longer legally or practically make their own decisions. However, they may resist their spouses’ attempts to control them. This can cause bitter arguments that damage a marriage. A Kane County divorce attorney at Goostree Law Group can discuss the benefits and risks of divorcing a spouse with dementia. Schedule a free consultation by calling 630-584-4800.

Source:

http://ilga.gov/legislation/ilcs/documents/075500050K11a-17.htm

https://www.ilga.gov/legislation/ilcs/documents/075000050k504.htm