Can an Incompetent Person Get a Divorce in Texas?

By Marcy Brinkley

An incompetent person cannot understand or make decisions about issues related to a divorce, such as property division, child custody and child support, without the assistance of someone to protect his interests. Since one of the grounds for divorce in Texas is the commitment of a spouse to a mental hospital for more than three years, the law provides a mechanism for ensuring a guardian attends the divorce hearings, participates in settlement discussions and signs documents on behalf of the incapacitated person or ward.


Only a judge can determine if a person is incapacitated, the term used for incompetence in Texas. The procedure for evaluating a person's capacity to handle their affairs is to file an application for guardianship in probate court and present evidence of the person's inability to do so. After a hearing, the judge will either declare the person incapacitated and appoint a guardian for him or dismiss the case for lack of evidence. If the situation is expected to be a short-term one, the judge will appoint a temporary guardian whose powers will expire in 60 days. Otherwise, the guardianship will be a permanent one, lasting until the incapacitated person recovers or dies.

Incapacity and Divorce

An incapacitated person involved in a divorce cannot fully understand the financial and legal issues involved; therefore, his guardian must act on his behalf. If handled properly, the divorce can be finalized in a way that is fair and equitable. The procedure employed depends on whether the person was incapacitated before the divorce was filed or became incapacitated afterward. In either situation, the case is transferred from divorce court to the probate court that normally handles guardianships.

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Incapacity Before Filing

If a married person becomes incapacitated, his spouse is usually appointed as guardian. If the guardian-spouse later decides to file for divorce, however, she must resign as guardian because of a conflict of interest. In that instance, the probate judge will appoint a new guardian to handle the incapacitated person's legal and financial affairs, including the divorce proceedings. Texas law also provides for a guardian filing a divorce petition on behalf of the ward if a divorce would be in his best interest.

Becoming Incapacitated During Divorce

In some cases, a party to a divorce becomes incapacitated during the waiting period between filing for divorce and finalizing the divorce action. For example, a husband may be involved in a car accident that impairs his judgment or memory to the point he cannot participate in hearings or settlement conferences. The divorce court judge must then ensure a guardianship application is filed in the probate court. If the probate judge determines after a hearing that the party is incapacitated, she will appoint a guardian for the husband and transfer the divorce case to her court, so she can oversee both the guardianship and the divorce.

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Missouri Probate Court Procedures

Missouri’s probate courts are divisions of the circuit courts; they handle probate issues including the administration of a deceased person’s estate. They also handle guardianships and conservatorships even when those issues are not connected to an estate administration case. Each county has a probate court division.

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A guardian is a person or organization appointed by a court to exercise care, custody and control on behalf of a ward -- a minor or an incapacitated adult. Wisconsin recognizes two types of guardianship: guardianship of the person and guardianship of the estate. Wisconsin guardianship law is found in Chapter 48 of the Wisconsin Statutes.

Temporary Guardianship Rights in South Carolina

A temporary guardianship is created only in an emergency situation in South Carolina when an incapacitated person needs urgent assistance, such as immediate medical attention. The probate court appoints a temporary guardian to supervise the person's care in the same way that a parent would. The temporary guardian has the same decision-making rights and obligations that a permanent guardian has, but for a limited time. A temporary guardianship is not the same as a temporary custody decision, which is granted by the family court in South Carolina.

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