Going through a divorce can be a difficult and lengthy process. If a spouse dies or becomes incapacitated during a divorce, the process can be even longer and more complicated. Everyone’s circumstances are different, and decisions will depend upon the specific facts around each case.
If a divorce petition was filed before a spouse became incapacitated, the other spouse has the choice of withdrawing the petition. A spouse that chooses to terminate the divorce proceedings is then able to become the disabled spouse’s caretaker and make medical and financial decisions on their behalf.
If a spouse was incapacitated before a petition for divorce was filed, the divorce process can go forward. However, though still officially married, it is considered by courts to be improper for the spouse filing for divorce to continue being the disabled spouse’s caretaker.
If a spouse becomes incapacitated during a divorce proceeding, the court can appoint a guardian to manage the incapacitated spouse’s person and property as necessary. In such cases, an application for a guardianship can be made by a relative or friend who is close to the incapacitated individual. If neither option is available, the court will appoint a neutral person to act on behalf of the incapacitated spouse. The appointed neutral person is typically an attorney-at-law.
Court rules govern the process for the appointment of a guardian. The court factors in the severity of incapacity when determining the type of guardianship that should be appointed.
Limited Capacity Guardianship
The court may appoint a guardian in a limited capacity, preserving an incapacitated person’s ability to participate in the proceedings to the extent that is reasonable.
Limited capacity guardianship applies when a person is either temporarily or permanently unable to make a fully informed independent decisions regarding their personal care or estate. Individuals with inherent physical conditions that restrict them from reaching the expected age-appropriate levels of performance have limited capacity.
The general rule, however, is individuals above the age of 18 years old who are able to independently make some but not all of the decisions necessary for their own care and the management of their property are deemed to have limited capacity. Individuals with limited capacity are to be protected by a guardian in order to avoid risks of abuse or exploitation.
Alternatively, the court may need to appoint a guardian with full authority to act on the incapacitated person’s behalf. Upon appointment of the guardian, they may move forward to negotiate and finalize the divorce proceedings, including but not limited to entering a Property Settlement Agreement and Final Judgment of Divorce. If a settlement cannot be reached, the guardian may proceed to trial on behalf of the incapacitated person.
In Maryland, the governing statute divides the legal factors for incapacity into three categories:
- Functionality: Person is unable to provide for health care, food, clothing, and shelter.
- Cognition: Person lacks sufficient understanding or capacity to make or communicate responsible decisions.
- Conditions: Physical or mental disability, disease, habitual drunkenness, or drug addiction.
Power of Attorney
If an incapacitated spouse has estate planning documents where a power of attorney is named, that person may possibly be their representative in the divorce proceedings. However, this person would still have to be approved by the court. It is important to remember that a valid power of attorney signed prior to incapacitation will not necessarily be sufficient for a divorce proceeding.
Divorce proceedings can move forward once there is a representative or guardian either appointed or approved by the court to represent the interests of the incapacitated spouse.
If a soon to be ex-spouse dies while a divorce petition is pending, the situation can be more complicated.
If a spouse dies before a divorce petition was filed, the surviving spouse cannot file for divorce. The deceased spouse’s estate documents will dictate how their property is to be disbursed. If the deceased did not have a will or any trusts, the state’s intestacy statute will dictate how any property that was independently owned by the deceased is to be disbursed. Any jointly owned marital property will usually go to the surviving spouse.
In Maryland, the law provides that the deceased spouse’s assets are to be disbursed as per their last will. If there was no last will, the assets are to be dispersed as per Maryland’s intestate statute. Under this rule, any assets that were jointly owned by the married couple will go to the surviving spouse. This means that the surviving spouse would get all of the jointly owned assets, which would not have been the case had the divorce gone through.
These cases can be complicated and legally complex. It is crucial to hire an experienced divorce lawyer to help you navigate through what can be an overwhelming process.
What Should I Do if I am Concerned About a Health Condition?
If you are going through a divorce and having health issues, it is imperative to discuss the concerns with your divorce attorney. These issues have to be addressed properly and efficiently.
You will need to put together a last will and testament or update your existing legal documents to reflect the fact that you are getting a divorce. You will also have to look at all of your life insurance policies and investment accounts where it is necessary to designate a beneficiary. These documents may also need to be updated. A skilled and compassionate divorce attorney will guide you through every step that must be considered and handled.
Bel Air Divorce Lawyers at Huesman, Jones & Miles, LLC Provide Compassionate and Qualified Legal Counsel to Those Going Through a Divorce
If you are considering getting a divorce, it is essential to consult with a knowledgeable divorce lawyer. Our Bel Air divorce lawyers at Huesman, Jones & Miles, LLC will answer all of your questions with honesty and compassion. Call us at 443-589-0150 or contact us online to schedule a free consultation. Located in Hunt Valley and Towson, Maryland, we serve clients across Baltimore, Baltimore County, Bel Air, Bentley Springs, Columbia, Freeland, Hereford, Hampton, Westminster, Essex, Monkton, Sparks Glencoe, Parkton, Phoenix, Pikesville, White Hall, Carroll County, Harford County, and Howard County.