You will definetly need a paper trail. If you have been living separate, that is different than being legally separated. Texas is a 50/50 state, all assets and debts, BUT you can come to any agreement amongst yourselves with legal counsel to split those assets and debts as in his and hers as you agree on. I'm going through a similar situation. My husband is in denial of his diagnosis and left me. If you are on friendly terms with your husband and you have discussed getting a divorce, you can advise him where to go for legal help. You can't have the same lawyer. Even though my husband wants a divorce after 23 years, I know it is because of what is going on with the disease and other medical issues. I also know that I will always be there for him in whatever way he will allow me and my children to help him as long as I am safe.
YES, you can be granted a divorce. You aren't divorcing your husband because he has dementia. The two of you have been separated for 15 years ! You will definitely have to do some interviewing to find the right lawyer. Don't give up hope. Some lawyers want huge retainer fees and some lawyers only ask for $1,000.00. Do not let that sway you. I went with the latter due to recommendations and because it was a smaller firm. The larger firms want $20,000.00 retainers FYI. If you and your husband are in agreement to the divorce, this also makes it much easier.
An initial dementia diagnosis does not necessarily mean legal incompetence. As long as your husband is still considered competent, he can be divorced.
After he is considered incompetent, things change. Check the laws of your state, its possible dementia or incompetence is a cause for divorce just as imprisonment is a divorce cause in many states. In TN (last time I checked) a legal separation can be obtained without any specified reason/cause and a divorce action is granted on request of either party after 4 years of legal separation where the legal separation process included the separation of assets.
If the incompetent principal has a DPOA authorizing divorce or the principal has a guardian then divorce may still be possible because the POA can stand in to protect the principal's interests.
As in so many cases like this on AC, please check with an attorney to see how the law applied in your home state.
4 years! That is a long time. NJ doesn't acknowledge legal separation papers. It used to be 18 months of separation before filing. Which took me another 6 months to get a divorce decree. In some circumstances, it can be shorter than that if abuse is involved. My daughter was divorced just about a year after DH left. Could have been shorter if he hadn't taken his dear old time. It was uncontested. No assets involved.
I recall this issue being raised sometime ago, so I did some quick research then. If I remember correctly, someone who's been diagnosed with dementia may not have the "capacity" (legal term) to participate or make decisions in legal matters, which could preclude the ability of the spouse to sue for divorce.
Try searching Texas laws on "divorce", "divorce, capacity" or something similar to find out first if this is allowed, then see a family law or matrimonial attorney, as they're more delicately referred to in some areas.
They haven't lived together for 15 yrs. There maybe no assets to split or she doesn't care if there are. So, may not be any problem in the asset department. Just a thought.
Here are a few things to keep in mind. 1) The court might appoint a guardian ad litem for your husband, if it is determined or suspected that he is incompetent. This is good, because it means that your husband's rights and interests will be protected during the divorce. But it might prolong the process. 2) Your state might have a statute similar to the following Wisconsin law: "A court may not approve a stipulation for a division of property that assigns substantially all of the property to one of the parties in the action if the other party in the action is in the process of applying for medical assistance under subch. IV of ch. 49 or if the court determines that it can be reasonably anticipated that the other party in the action will apply for medical assistance under subch. IV of ch. 49 within 30 months of the stipulation." Basically, this means that it is illegal to divide the property in a way that is an attempt to make one of the people eligible for Medicaid when he or she wouldn't otherwise be eligible.
I would see a lawyer. I would say if ur separated 15 years you split any assets then. Just didn't take it further. You maybe able to divorce him without him needing to sign. I have a friend that didn't know she was divorced. Her husband did the paperwork.
Yes. Almost all states are no fault. That meaning that you can divorce whenever you like and for whatever reasons. You should consult an attorney. There are a lot of issues, say just retirement and IRA accounts and so on that need looking into.
I think she's asking if it's legal for her to file for divorce now that he has dementia and is probably deemed incompetent to sign papers. I could be wrong, though. And the answer is I don't know.............if that's the question. I think it would be fine.....the divorce would be uncontested. But I'm not a lawyer
I'm going through a similar situation. My husband is in denial of his diagnosis and left me. If you are on friendly terms with your husband and you have discussed getting a divorce, you can advise him where to go for legal help.
You can't have the same lawyer.
Even though my husband wants a divorce after 23 years, I know it is because of what is going on with the disease and other medical issues. I also know that I will always be there for him in whatever way he will allow me and my children to help him as long as I am safe.
YES, you can be granted a divorce. You aren't divorcing your husband because he has dementia. The two of you have been separated for 15 years ! You will
definitely have to do some interviewing to find the right lawyer. Don't give up hope. Some lawyers want huge retainer fees and some lawyers only ask for $1,000.00. Do not let that sway you. I went with the latter due to recommendations and because it was a smaller firm. The larger firms want $20,000.00 retainers FYI. If you and your husband are in agreement to the divorce, this also makes it much easier.
Blessings
After he is considered incompetent, things change. Check the laws of your state, its possible dementia or incompetence is a cause for divorce just as imprisonment is a divorce cause in many states. In TN (last time I checked) a legal separation can be obtained without any specified reason/cause and a divorce action is granted on request of either party after 4 years of legal separation where the legal separation process included the separation of assets.
If the incompetent principal has a DPOA authorizing divorce or the principal has a guardian then divorce may still be possible because the POA can stand in to protect the principal's interests.
As in so many cases like this on AC, please check with an attorney to see how the law applied in your home state.
Try searching Texas laws on "divorce", "divorce, capacity" or something similar to find out first if this is allowed, then see a family law or matrimonial attorney, as they're more delicately referred to in some areas.
1) The court might appoint a guardian ad litem for your husband, if it is determined or suspected that he is incompetent. This is good, because it means that your husband's rights and interests will be protected during the divorce. But it might prolong the process.
2) Your state might have a statute similar to the following Wisconsin law:
"A court may not approve a stipulation for a division of
property that assigns substantially all of the property to one of the
parties in the action if the other party in the action is in the process
of applying for medical assistance under subch. IV of ch. 49 or if
the court determines that it can be reasonably anticipated that the
other party in the action will apply for medical assistance under
subch. IV of ch. 49 within 30 months of the stipulation."
Basically, this means that it is illegal to divide the property in a way that is an attempt to make one of the people eligible for Medicaid when he or she wouldn't otherwise be eligible.
If you have not commingled funds or assets and have obviously been living separate lives for 15 years there is probably a way to make it happen.