Divorce and Dementia

An interesting and unique case has recently been decided in circuit court in Palm Beach County. Martin Zelman, who is eighty-seven years old, was denied a divorce from his wife of fifteen years, Lois Zelman, who is eighty. The court ruled that because of his dementia, Mr. Zelman was not mentally competent to seek a divorce.

Prenuptial Agreement

Lois and Martin Zelman married in 2000. They had a prenuptial agreement that gave Mrs. Zelman approximately $7 million in the event of Mr. Zelman’s death. She could then leave that money to her children from a prior marriage. Mrs. Zelman would also be able to use the income from a trust containing $5 million, and would have the use of the couple’s real property, including apartments in Palm Beach and in New York. When she died, the trust and real property would go to Mr. Zelman’s children. But according to the terms of the prenuptial agreement, if Mr. Zelman divorced her, she would not get the money, estimated at a total of $10 million, or the use of the property.

Guardianship

Unfortunately, Mr. Zelman developed dementia. Last year, his adult children filed a petition in probate court, alleging that Mr. Zelman was incapacitated and seeking the appointment of guardians of his person and property. In the petition, the children also claimed that Mrs. Zelman was taking advantage of Mr. Zelman’s incapacity and keeping him from his children.

Judge Diana Lewis appointed two of Mr. Zelman’s children as his guardians and ordered Mrs. Zelman out of the couple’s condo, but she let Mr. Zelman retain the capacity to sue and be sued. The next day, the divorce petition was filed.

Mrs. Zelman insisted that, though the dementia had changed her husband and their relationship, she continued to love him and did not want to divorce him. Her attorneys asserted that the divorce petition was the work of Mr. Zelman’s children, who wanted to keep her from the estimated $10 million.

Mental Incompetency

In Florida, the mental incompetency of one spouse is grounds for divorce. But a divorce will not be permitted on these grounds until the spouse has been adjudged incapacitated for at least three years. Typically, the restriction applies when a competent spouse tries to divorce someone who has dementia or another mental infirmity. The law was designed to protect incapacitated spouses who cannot defend themselves. It has not generally been used in cases where the incompetent spouse is seeking the divorce.

The Outcome

In the court’s July opinion, Judge Charles Burton ruled that Mr. Zelman was not competent to obtain a divorce. He noted that Zelman gave confused testimony in the proceedings, such as that he and Mrs. Zelman had married in 2012, that the year was 2017, and that the Zelmans had adult children and grandchildren together.

Judge Burton found no evidence that the Zelmans’ marriage was irretrievably broken. He found that Mr. Zelman had no clear understanding of the proceedings and did not know what he was doing. For these reasons, he refused to grant the divorce.

Divorce is a complex issue even without the addition of problems like dementia. It is important, especially for elderly couples, to understand the effect that the deterioration of age can have on a person’s capacity to sue for divorce. If you are considering divorce, please call West Palm Beach family law attorney William Wallshein for a free initial consultation.