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Wife’s Opinion Regarding Divorce Controls Despite Her Incapacity

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It doesn’t happen often, but it does happen. An elderly couple, with one spouse slipping mentally, contemplates divorce. Perhaps the well spouse is simply unable to cope. Perhaps both are compromised mentally and/or medically. Perhaps there are long-term care issues involved. Perhaps the spouse with mental failings has simply decided — and maybe even as part of his or her delusional mental system — that the marriage must end.

How does the divorce court deal with a mentally impaired spouse? One way is for someone to secure appointment of a guardian and/or conservator. Arizona law, like the law of many states which have considered the question, permits a guardian to prosecute a divorce proceeding for the ward. That question was settled in a 1993 Arizona Court of Appeals decision (Ruvalcaba by Stubblefield v. Ruvalcaba, which we reported on at the time–in the very first year of Elder Law Issues). The Ruvalcaba case raised but did not answer a number of related questions:

  • If a guardian (of the person) can bring the divorce action, does it require a conservator (of the estate) to negotiate a property settlement?
  • What if the incapacitated person objects to the divorce? What if he or she has no opinion in favor or opposed?
  • Is it important that the divorce be financially or personally beneficial to the divorcing spouse? For instance, is it relevant to determine whether the other spouse has been abusive, or taken community assets wrongfully, or would benefit because of a prenuptial agreement?

These and a number of other questions are unanswered in Arizona, though the 1993 case described earlier suggests that the possibility of abuse might be relevant in determining how much authority to give to a guardian. That case also raised questions of child custody — the guardian (the wife’s mother) sought custody of the couple’s children for her disabled daughter, who lived with her. The court acknowledged that the practical result of the divorce order would be that the grandmother/guardian would get custody, which she could not have obtained directly.

A recent California case provides at least a little insight into the kind of divorce proceeding involved in guardianship matters — though the California court gave authority over the divorce to a conservator of the estate. Despite that difference, the California case probably gives some guidance for similarly situated Arizonans.

Evelyn Straczynski filed for divorce in 2005, alleging (among other things) that she and her husband had been married since 1950. Her husband answered that the marriage had only been in place since 1986, that his wife suffered from dementia, and that her three decade mistake was symptomatic of her condition.

After the divorce proceeding had been moving, albeit slowly, for about a year, the California probate court appointed a conservator for Mrs. Straczynski. The judge also interviewed Mrs. Straczynski directly to determine whether she understood what was happening and whether she wanted a divorce; the judge decided that, though she was impaired, she could express her opinion that she wanted a divorce from Mr. Straczynski.

Three years later the divorce proceeding had not been concluded. The family court judge scheduled a hearing on Mr. Straczynski’s motion to dismiss the divorce; he maintained that the couple had reconciled. His basis: although he had not been allowed to see his wife for several years, when he was permitted to visit she recognized him immediately, expressed her attachment to him and generally manifested a desire to be with him.

The family court judge denied Mr. Straczynski’s motion to dismiss the divorce proceeding, but dismissed it anyway, on different grounds. He found that there is way a divorce can be granted on the request of a now-incapacitated person, that she could not testify that there were irreconcilable differences, and that divorce would not be in Mrs. Straczynski’s best interest for personal and financial reasons.

The California Court of Appeals reversed the judge’s dismissal on those grounds and returned the case for further consideration. The key question, according to the appellate court, is whether Mrs. Straczynski now has the mental capacity to express an opinion about whether the divorce should be completed. If she does, then it should go forward; if she does not, then the divorce should be dismissed. By inference, if Mrs. Straczynski has the capacity to express her opinion and that opinion is that she would like to stay married, the divorce proceeding should be dismissed. In re Marriage of Straczynski, October 22, 2010.

Mrs. Straczynski’s case only deals with the situation in which the spouse seeking a divorce is incapacitated — and the decision may not be persuasive in Arizona on that narrow question. More common is the situation in which the spouse seeking the divorce is fully competent, and the other spouse is incapacitated. The answer in that situation is fairly clear in Arizona, though it remains uncertain what relative role a guardian of the person and conservator of the estate should play in such cases.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.