The Mental Capacity Required to File for Legal Separation is Much Lower than the Mental Capacity Required to Enter Contracts

In this divorce, wife objected to husband’s Orange County divorce lawyer’s request for legal separation, claiming husband was not mentally competent to end the marriage. Husband was a 76-year old retired dentist who was declining in health due to an infection as well as lymphoma. Husband had moved to a retirement community and received care from nurses on staff. Wife was 72-years old and self-represented at the time of receiving husband’s request for separation. Initially, wife responded also requesting a legal separation based on irreconcilable differences.

The next month, husband’s Orange County divorce attorney filed a request in the divorce court to expedite the separation based on his age and declining health. Husband was concerned about wife interfering with his health decisions and with the help of an elder lawyer, appointed power of attorney to his son. Wife, having now obtained an Orange County divorce attorney, claimed the requested separation was coming from their son who was manipulating husband, whom she claimed had diminished capacity. Wife stated she still loved husband and wanted to continue their relationship “as long as they both shall live.”

The divorce court held a trial over husband’s capacity to file for legal separation. At trial, husband’s doctor testified that husband had a mild case of dementia. After hearing from many witnesses as well as husband himself, the divorce court determined husband had the capacity to make reasoned decisions, as seen in his decision to appoint his son as his power of attorney. The divorce court found this showed husband’s ability to reason and plan for the future. Wife’s Orange County divorce lawyer appealed the divorce court’s decision citing insufficient evidence.

The Court of Appeal agreed with husband’s Orange County divorce lawyer and with the divorce court’s reasoning and went on to define the level of capacity necessary to file for a legal separation. There is a presumption of capacity for the party filing for the separation (here, Husband), which is much lower than the capacity for other legal decisions such as entering into contracts or testifying in court. The Court of Appeal relied on the divorce court’s first hand observations of husband which found husband to be competent enough to testify thus satisfying the lower standard of capacity to file for legal separation.

In re Marriage of Greenway (2013) 217 Cal. App. 4th 628