This is the next post in my series discussing how to obtain a divorce when a spouse is not available or present to accept service. My previous post dealt with the issue of when a spouse is deployed prior to the divorce process. In this post I will be switching gears a little bit and discussing a different type of problematic issue – filing for divorce when a spouse is medically incapacitated.
Filing for divorce from a spouse who is comatose or otherwise medically incapacitated is understandably a sensitive issue. The filing spouse may face criticism from family or friends or have to deal with their own guilt. With that said, there are many reasons why a person may wish to divorce a spouse with long term medical issues. The comatose spouse may have a poor long term prognosis from which they will not recover and the spouse may wish to move on. The filing spouse and the family may disagree about the course of treatment. Or it is possible that the marriage was on the rocks prior to a medical emergency, and the medical situation does not change the spouse’s desire for a divorce. Whatever the reason, it is possible to divorce a medically incapacitated spouse.
The largest hurdle in such a situation is that the incapacitated spouse is not able to make medical decisions or accept service. The first step is to set up a guardianship for the spouse being divorced so that someone other than the divorcing spouse can make medical decisions on the person’s behalf. This will often be a family member although, if one is not available, the county may appoint a guardian. If the spouse who is filing for divorce is the current guardian then this guardianship must be changed.
Once a guardian is put in place the divorce may move on as there will be someone who will look after the best interests of the incapacitated spouse. The guardian of the spouse will most likely be concerned with issues such as the spouse’s health insurance, ability to continue paying medical expenses, and preserving any property. Community property laws will continue to be in place and the spouse who is medically incapacitated will still be entitled to half of the community. The divorcing spouse may be required to pay spousal support to assist with medical bills, depending on the situation.
If one wishes to divorce a spouse that is medically incapacitated then it is likely that finances are a strong concern for the divorcing spouse. Depending on the reason one wishes to get divorced, one may wish to consider formally separating instead or keeping the marriage in place with someone else as the guardian. Discuss with your attorney the reasons you wish to be divorced, and disclose all of your financial concerns. A qualified Las Vegas attorney will walk you through the financial ramification so a divorce and help you make the best decision for yourself and your family.
