Divorce with Dementia

Can an individual suffering from dementia legally divorce his or her spouse?  Or to put it another way, can someone with dementia possess the legal right to divorce and initiate a lawsuit yet at the same time to lack the capacity to manage property or drive or be employed?  To what extent should the present-day cognitive difficulties of a person with dementia be used to override the terms of an otherwise enforceable prenuptial agreement?  And how can the well-being of the person be properly safeguarded from manipulation and exploitation by greedy family members whose interests are starkly opposed to one another?  All these issues and more are reflected in the case of Zelman v. Zelman, a case presently being litigated in the Palm Beach County Circuit Court.  See Can Florida man with dementia file for divorce, Palm Beach Post, May 24, 2015, http://www.wftv.com/news/news/national/florida-man-dementia-files-for-divorce/nmNH9/.

To briefly summarize the situation, wealthy Florida real estate investor Martin Zelman married his current wife Lois in 2000, 7 years after they began dating.  Now 87, Martin is suffering from advancing dementia.  Martin has a number of adult children who are not the children of Lois.  According to Martin’s adult children and their attorneys, Martin would like to get a divorce from Lois.  However, incidental to their marriage, Martin and Lois entered into a prenuptial agreement.  That agreement provides in pertinent part that Martin must initiate a divorce himself personally.  Meaning under the terms of that agreement, no conservator or other legal guardian for Martin can initiate a divorce on his behalf.  The children argue they are acting in Martin’s best-interest.  Of course, their motivations must be seen in the context of standing to inherit some $10 million of Martin’s $50 million estate that would otherwise pass to Lois under the terms of the premarital agreement.

Martin’s son Robert Zelman has taken the lead in using judicial means to try to get his step-mother out of the picture.  Last year he initiated proceedings to declare Martin legally incompetent, arguing he was being abused by Lois, and requesting that he be appointed legal guardian for his father.  In what is surely a novel strategy, the petition sought a declaration that Martin be deemed unfit to marry, to manage property, to drive or to work, yet preserving Martin’s ability to sue and defend lawsuits!  Somewhat conveniently, one may observe, that preserving that right would comport with Martin’s ability to divorce under the terms of the prenuptial agreement.

Lois argues she has been with Martin for 22 years and that the love and affection she still feels for him has always been rooted in far more than Martin’s substantial wealth.  Her attorney maintains that the efforts of Robert and his siblings are merely cynical attempts to nullify the terms of the agreement.  He explains that Martin has always had a generous personality and he entered into that agreement because he wanted to make sure Lois was well taken care of. He strongly argues the courts should not now set aside that agreement for sake of the greed of his Martin’s children.

Amidst a long string of accusations and counter-accusations levied by Lois against the children and children against Lois, the Circuit Court in Palm Beach is expected to make some key decisions this month.  The judge is expected to entertain testimony to consider the extent that Martin really wants the divorce his children claim he wants and to determine if Martin understands what he is doing.  That decision in turn will determine whether or not a divorce proceeding should or could be initiated given the requirements of the prenuptial agreement.

Please call us at 860-769-6938 if you have any questions about the issues presented above or if you care to discuss any other planning issues with us.


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