Blog Post

Mental Incompetency in Guardianship and Divorce

          It is not uncommon for courts to name one’s spouse as their guardian, but what happens when the incompetent party wants to get divorced from his wife and guardian? Can one be incompetent, yet understand the consequences of and express a desire to get divorced?


          Carolyn, the wife of an eighty-eight year old Kentucky man, Elmer Riehle, petitioned the court to appoint a guardian for her husband for financial reasons – to protect both herself and Elmer.[1]  Carolyn decided to file the petition after Elmer sent thousands of dollars of the couple’s money to an e-mail scammer claiming to be a Nigerian prince.  When Carolyn attempted to stop him, he sold the couple’s lawnmower to find another way to come up with the money.  In 2008, and over his objections, a jury determined Elmer was incompetent and named Carolyn his guardian.


          A guardian is a person appointed by the court to manage the affairs of an incompetent person.  They are appointed when the person is unable make decisions regarding their finances, health, and other personal matters.  Legal Aid of Kentucky points out, “[m]erely spending one’s money unwisely is normally not enough to require a guardian. When a person cannot understand the amount of their income or assets or what their financial obligations are or how to meet them, the appointment of a guardian may be appropriate.”[2]  While Elmer claimed that he “made a few bad financial decisions,” his wife prevailed due to the extent of his financial mismanagement.  She then put him on a $200 per month allowance to curtail his spending.


          In 2013, Elmer filed for divorce, claiming he was being held prisoner by his wife.  His basis for alleging he was competent to obtain a divorce was that he was left alone while Carolyn is at work and on vacation, and able to take care of himself.  He also sought the advice of an attorney independently.  His wife claimed that he’s not a prisoner, but not competent enough to take care of his financial affairs.  He is free to come and go as he pleases and associate with whomever he wants but, due to his track record of assisting “Nigerian royalty,” she did not want him to have any control of their finances.


          Kentucky is one of only 10 states that prohibits incompetent individuals from obtaining a divorce.  A case involving the competency of a petitioner for divorce has never before reached the Supreme Court of Kentucky, so a ruling would be precedential.  If the court determines Elmer may go forward with the divorce proceedings, it would not immediately revoke Carolyn’s legally appointed role as guardian.  However, Elmer could later request that the court appoint a different guardian.


          The question is difficult as it is not simply a matter of the heart.  Marriage is, legally speaking, a contract.  Generally, contracts entered into by incompetent persons are voidable, but Elmer was competent at the time of his marriage.  The Kentucky Supreme Court must ultimately decide what level of capacity is required for the dissolution of a marriage contract.


For more on guardianship proceedings, please see a previous  post on the subject.


[1] Kentucky Justices Struggle with Mentally Incompetent Divorce, Adam Beam, Associated Press,, (August 19, 2016).

[2] A Family Guide to Guardianship in Kentucky: Questions and Answers, Legal Aid of Kentucky, (August 2009).