Mental Incapacity: The Lesser Known Basis for Divorce

Marriage requires compromise and acceptance of difficult situations if a couple wants it to last, and such sacrifice tends to increase as spouses age. People generally recognize that a spouse will change both physically and psychologically over time, and are willing to stay with the person despite these shifts. However, there may come a point where the change is so dramatic and profound that staying married is no longer feasible and divorce becomes a viable option. Everyone is familiar with irreconcilable differences as the no-fault basis for divorce, but Florida also offers an additional ground to justify divorce – mental incapacity. Divorcing someone in these circumstances may seem harsh, but other factors may make ending the marriage in this manner a reasonable choice. Children, especially if they are young, are likely to experience a considerable negative impact if continually exposed to a parent that is mentally incapacitated. Kim Kardashian is currently facing the dilemma of deciding whether to divorce from her husband, Kanye West, in the wake of his mental health breakdown in recent weeks. Divorcing someone on the grounds of mental incapacity is not the easy procedure offered by claiming irreconcilable differences, but is important to know about for those in this situation.

Divorce Due to Mental Incapacity

The main reason someone might choose to use irreconcilable differences as a basis for divorce, even if their spouse is mentally incapacitated, is the extra time required for choosing the latter. Florida law mandates that to use mental incapacity as the reason for divorce, one spouse must first be declared incompetent for at least three years. Further, the incapacitated spouse is entitled to have a guardian to represent their interests, which adds another layer of complexity to the case. Most importantly, though, spouses that divorce due to mental incapacity are obligated to pay alimony because the other spouse is almost guaranteed to lack the resources for self-support.

Getting Someone Declared Mentally Incapacitated

Before getting into how one is declared incapacitated, it is worth stopping for moment to consider why a spouse or family member would take this step in the first place. It seems to appear from the outside that this procedure would have little to no impact on the daily needs of the incapacitated person, which is probably true. But, it does give the spouse or family member the authority to make medical and financials decisions on behalf of the incapacitated individual, and may open access to programs that can assist with caring for the incapacitated person.

This process starts with filing a petition with the court asking it to declare someone incapacitated. These petitions are addressed on an expedited basis, so the process moves somewhat quickly compared with other cases. Within five days of filing the petition, the court must appoint a committee of three medical professionals to evaluate the condition of the person named in the petition, and each must submit a report to the judge no later than four months after their appointment. Each professional must personally examine the individual and assess whether he/she has the ability to exercise certain legal rights, such as the right to marry, manage property, vote, make medical decisions and decide living situation issues. The court uses this information, along with its own impressions gathered by questioning the individual, to decide if some or all legal rights should be removed due to incapacity. This status continues indefinitely until lifted by a court in a future proceeding.

Talk to a Divorce Attorney

If you are considering divorce, regardless of the reason, consult a divorce attorney before filing a divorce petition. Divorce has important legal consequences, many of which are permanent, and should be approached under the guidance of a divorce attorney who can make sure your interests are fully considered and protected. The Tampa Bay law firm of the All Family Law Group works with clients to achieve their specific goals as they enter a new stage in life.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Traditional vs. Collaborative Divorce: Which Option Is Better for You?

Deciding to divorce is one of the most difficult and painful decisions most people will ever make. Coming to this conclusion is typically the result of a lot of discussion, personal reflection and failed efforts to improve the relationship. Once the decision is made, though, the logistics and practical considerations of getting divorced must be addressed. Who will file the divorce petition? Will both sides hire lawyers? Should child custody and property division be decided first? These are important questions that all divorcing couples face, but another crucial matter those seeking divorce should consider is the type of divorce procedure to use. Most people assume that the traditional, combative divorce case in front of a judge is the only way to dissolve a marriage. However, as divorces have become more common over the past 30 years, alternative ways to pursue divorce have emerged, including a recent option called collaborative divorce. This method of divorce is geared toward allowing the parties to emerge from the process with a working relationship by the use of a non-combative dispute resolution approach. While collaborative divorce is an option, this choice is not right for everyone.

Marriage is a Business Contract

While viewing marriage as a business deal is not the most romantic approach, it does reflect the practical realities of the rights and obligations a couple both grant and assume to each other the day they marry. In the event of divorce, sorting out how to dissolve this arrangement is a proposition more suited for the abilities of a court, rather than the professional advisors that collaborate with divorcing parties in the collaborative divorce process. While it may seem more attractive to fashion one’s own conclusion to the relationship, the court has remedies it can access that are unavailable to private parties. These remedies are designed to ensure the unraveling of the relationship is just, and protect the rights of parties in weaker positions.

Traditional Divorce Can Be Civil

Collaborative divorce is known as the peaceful alternative to ending a marriage, but couples do not have to engage in protracted disputes simply because a traditional divorce case is filed. Couples can work out their own private settlement agreement, with the assistance of divorce attorneys, before stepping inside a courtroom. In fact, Florida offers a simplified divorce petition, which gives parties with no disputed issues a condensed and faster approach to navigating the divorce process.

Limitations on Probing the Other Side’s Claims

A key aspect of conventional divorce cases is the disclosure of financial information to the other side. This information is needed to assess the types of property owned jointly and separately for purposes of property division, and to see the financial resources of each party for calculations of child support and alimony awards. Filing the usual divorce petition gives each party the ability to request specific information, and to ask a court to compel the release of additional information if fraud or misrepresentation is suspected. Collaborative divorce does not give parties the tools to verify or contest the accuracy of the financial information offered. This limitation may make it easier to hide or withhold information on assets, so if someone considering divorce is unsure about what the other spouse owns, this process may not be the best choice.

Work with a Florida Divorce Attorney

If you are contemplating divorce, talk to a divorce attorney before filing a petition to make sure you choose the type of divorce best for you and your family. The Tampa Bay law firm All Family Law Group, P.A. is experienced in many different types of divorce, and can assist you with your case.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Understanding a Simplified Divorce

In Florida, as in other states, the law provides a way to dissolve a marriage more easily, known as a simplified divorce. A simplified divorce is faster and easier than a standard divorce, however, couples must meet the stringent qualifications. Those who meet the criteria may save time and money with a simplified dissolution of marriage. And, to be sure, in order to file for any type of divorce in Florida at least one party must be a resident for the last six months.

Qualifications for a Simplified Divorce

In order to proceed with a simplified divorce couples must meet certain criteria. This includes:

• both parties agree that the marriage cannot be reconciled;
• the parties do not have any dependent children or any children under age 18;
• the woman is not pregnant;
• both spouses agree regarding division of assets and debts;
• neither party is requesting maintenance;
• both spouses agree to relinquish their right to a trial; and
• both parties must attend a final court hearing.

Those who do not meet these qualifications cannot file for a simplified divorce and must instead file a standard petition for dissolution of marriage.

Submitting the Petition

A petition is necessary to begin the process of a simplified divorce. The application must be signed in the presence of the deputy clerk, at the clerk’s office. Both parties must sign the petition, although it is not necessary for both people to be present at the same time. In addition to the petition, each person must provide proof of identification with a photo id. Your driver’s license will be sufficient for this purpose. A fee must be paid at the time you submit the form. You will receive a court hearing date and time.

Marital Settlement

A marital settlement agreement is a written document that provides for how assets and debts are to be distributed as part of the dissolution of marriage. Both parties are required to come to an agreement as to how to distribute their marital property. Marital property consists of any assets that were acquired during the marriage. Generally, those who qualify for a simplified dissolution of marriage are those who have few assets and debts to allocate. You can agree to the settlement orally, which should be noted on the settlement form.

How a Divorce Attorney Will Help

While the simplified divorce is designed to be easy to complete, it may be helpful to seek assistance from an experienced divorce lawyer. It is important to note that if you have someone other than an attorney assist with filling out the forms, this person must provide you with a disclosure from non-lawyer, a requirement by law. The person filling out the forms must provide his or her name, address, and telephone number on the last page of every form. Simplified divorce assistance may be provided by an attorney at a flat fee. To learn more about a simplified divorce and to begin the procedure, contact the Tampa divorce and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+