What if My Spouse Has Diminished Capacity? Can I Still File for Divorce?

Ending a marriage is not something that should be taken lightly. Indeed, many people stress over the decision and may be especially concerned if their spouse has diminished capacity.

In a divorce case, diminished capacity means one spouse is unable to fully understand or participate in the legal proceedings due to a mental disorder. Some examples include:

Incapacitation refers to a state where a legal adult lacks the mental capacity to make binding legal decisions. A spouse may be considered incapacitated for a variety of reasons, such as:

• Unconsciousness. If the spouse is in a coma or brain-dead, they are not aware of events around them, so they cannot respond or participate in legal proceedings.
• Memory disorders. If the spouse has dementia, Alzheimer’s, or another memory disorder, they cannot retain critical information to make informed decisions during a court case.
• Mental illness. If the spouse has severe mental health issues such as psychosis, delusions, or another serious mental illness, they may be unable to understand court cases and participate fully in the legal proceedings.
• Severe substance use disorders. If the spouse has a severe substance use disorder, it is possible that they may be unable to participate in the proceedings.

Under Virginia Code § 20-91, divorce can be filed on fault or no-fault grounds. While you can still file for divorce if a spouse has diminished capacity, the process is a bit more complicated.

This situation requires the court to protect the incapacitated spouse’s interests by appointing a Guardian ad Litem. In Virginia, a guardian ad litem is a qualified attorney appointed by a court to investigate and advocate for the best interests of a child or incapacitated person, providing recommendations to the judge who makes the final decision. The Guardian ad Litem gathers information through interviews and document review to form an independent opinion, which they present to the court. The court is not required to follow the Guardian ad Litem’s recommendations.

How Does Diminished Capacity Affect a Divorce Case?

In Virginia, a spouse’s diminished capacity or mental health can impact a divorce case, particularly concerning issues of child custody, spousal support, and property division. However, it is not generally used as a fault-based ground for divorce. Judges will assess the mental health of each parent to determine the child’s best interests and may consider a spouse’s limitations in earning capacity when deciding on financial support.

When diminished capacity prevents one spouse from working or managing finances effectively, the court may award that spouse a larger share of marital assets. For example, if a spouse’s condition makes it impossible to maintain steady employment or handle complex financial decisions, the court may allocate more liquid assets or other forms of income to ensure their long-term care and financial stability.

Contact Us Today

The divorce process can be scary and uncertain, especially when one spouse has diminished capacity. Have questions? Unsure of the process? 

Count on the skilled legal guidance from the Virginia divorce attorneys at Culin, Sharp, Autry & Day PLC. Consult with us early in the process. Contact us via (703) 934-2940 or online here to schedule a consultation.