If a divorce litigant is incompetent, his legal representative, such as a general guardian, conservator or other fiduciary, may sue on behalf of the incompetent person. However, if the incompetent person has no such legally appointed representative then the domestic relations rules specifically allow a person acting as the incompetent’s next friend to sue on his behalf.
A divorce action may be brought against an incompetent spouse, but principles of fairness require that the defendant’s interests be properly represented in the litigation.
In Massachusetts this is accomplished by the appointment of a guardian ad litem for the incompetent spouse. The plaintiff spouse is under an obligation to bring to the court’s attention that the defendant spouse is incompetent. This can be done by a motion to appoint a guardian ad litem. The compensation and expenses of the guardian, after determination of such by the court, may be paid by the plaintiff if the court so orders. The guardian may investigate the mental competence of the defendant and report to the court.
The guardian is not under a duty to oppose the divorce. However, the guardian should do what is reasonably necessary to protect their client’s interests.
Whether the defendant is in fact incompetent is a question of fact. Thus, the fact that at various times, the defendant has suffered mental illness does not require the appointment of a guardian ad litem if there is no finding that the defendant is mentally incompetent to defend her or his interests in the litigation at the time.
Certainly in a divorce action alleging marital fault on the part of the defendant and in evaluating the “conduct” of the defendant in regard to alimony or property division, a party ought not to be prejudiced by his acts which are the product of an incompetent mind.
The Law Offices of Renee Lazar is sensitive to the needs of incompetent persons and can offer assistance in bringing an amicable resolution to the parties divorce.