Can Guardianship Be Used in a Divorce When a Spouse Is Incapacitated?

Understanding How Article 81 Guardianships Protect an Incapacitated Spouse in a New York Divorce

Divorce is already one of the most emotionally and legally complex areas of family law. The situation becomes even more complicated when one spouse is mentally incapacitated and unable to participate in the divorce.

This raises a critical question:

“Can you divorce an incapacitated spouse in New York — and how does guardianship factor into the process?”

The answer:
Yes, a divorce is possible — but only if a guardian is appointed to represent the incapacitated spouse’s interests.

This article explains how guardianships interact with divorce proceedings and why Article 81 plays a central role when incapacity prevents a spouse from protecting their legal rights.

Why Guardianship Is Required in Divorce When a Spouse Is Incapacitated

Divorce litigation requires:

• Understanding claims

• Making decisions

• Negotiating settlement

• Consenting to or disputing relief

• Participating in discovery

• Protecting financial rights

• Testifying when necessary

An incapacitated spouse cannot meaningfully do any of these things.

✔ New York courts will NOT allow the divorce to proceed unless someone is legally authorized to:

• Review settlement proposals

• Defend the spouse’s financial interests

• Litigate contested issues

• Approve or reject property division

• Participate in negotiations

• Communicate with counsel

That “someone” must be one of the following:

1. An Article 81 Guardian

2. A Guardian ad Litem (GAL)

3. Both, depending on the complexity of the case

Article 81 Guardian vs. Guardian ad Litem in Divorce

Guardian ad Litem (GAL)

• Appointed only for the litigation

• Does not manage the spouse’s life or finances

• Protects legal interests during the divorce only

• Temporary and task-specific

Article 81 Guardian

• Has ongoing authority over:

  • healthcare

  • personal needs

  • financial decisions

• Can litigate the divorce on behalf of the spouse

• Has broad decision-making power

• Continues after the divorce is finished

✔ When Courts Prefer an Article 81 Guardian

• Long-term incapacity

• Significant marital assets

• Real estate transfers

• Spousal support issues

• Pension or retirement division

• Need for ongoing financial oversight

Can a Spouse Petition for Guardianship Solely to Get a Divorce?

Yes — but the courts take this very seriously.

A well-structured petition must show:

• The spouse is incapacitated

• A divorce is necessary and legitimate

• The petitioner is not exploiting the situation

• Appointment is in the incapacitated spouse’s best interest

• A neutral guardian may be required to prevent conflict of interest

✔ Courts often appoint a neutral lawyer as Article 81 guardian when the other spouse is the petitioner.

This prevents undue influence and ensures fairness.

What the Guardian Is Allowed to Do During a Divorce

A guardian for an incapacitated spouse may:

• Retain matrimonial counsel

• Participate in settlement discussions

• Evaluate financial proposals

• Approve or reject agreements

• Appear in court

• Demand or respond to discovery

• Protect property

• Ensure adequate spousal support or maintenance

• Challenge unfair marital agreements

✔ IMPORTANT

A guardian can consent to divorce on behalf of the incapacitated spouse if it meets the “best interest” standard and/or substituted judgment analysis.

Standards Courts Apply When a Guardian Participates in Divorce

Best Interest Standard

Guardian may pursue divorce positions that:

• Protect the spouse’s financial security

• Ensure access to care and housing

• Avoid exploitation

• Maintain necessary healthcare coverage

Substituted Judgment Standard

Guardian attempts to determine:

• What the spouse would have chosen if they had capacity

• Based on:

  • past statements

  • values

  • lifestyle

  • marriage history

  • cultural context

  • pattern of decisions

Situations Where Guardianship Becomes Necessary in Divorce

A spouse has dementia or Alzheimer’s

1. A spouse has suffered a stroke or traumatic brain injury

2. A spouse is in a coma or vegetative state

3. A spouse has advanced psychiatric conditions

4. A spouse is mentally unable to understand divorce proceedings

5. A spouse is being financially exploited

6. The marriage is no longer viable, but the incapacitated spouse cannot act

What About “In Sickness and in Health” and “Til Death Do Us Part?”

We hear you - you took vows to be by each other’s side through sickness, health and everything in between. And now you’re confronted with the fact that your spouse can divorce you at your lowest point (health wise). What gives?

We all have a legal right to a divorce, even if that divorce takes place during your illness. Being sick is not a defense, or bar, to a divorce.

Practical Steps: How Guardianship Works in a NY Divorce

Step 1 — File an Article 81 Petition

Petition must explain:

• The incapacity

• The need for a guardian

• The intersection with pending or anticipated divorce

• Why a guardian is required to protect rights

Step 2 — Appointment of Court Evaluator

The evaluator reports on:

• The spouse’s capacity

• The necessity of guardianship

• The potential conflicts of interest

• Whether a neutral guardian is required

Step 3 — Hearing

Court determines:

• Incapacity

• Scope of guardian’s powers

• Who should serve as guardian

Step 4 — Divorce Proceeds with Guardian Participation

Guardian works with matrimonial counsel to:

• Develop litigation strategy

• Protect financial interests

• Approve settlement

• Represent the spouse’s best interests
  
  SIDE NOTE: You could Petition for the appointment of a Guardian at any point during a Divorce proceeding. For example, you would be entitled to ask for one, even if you had already started the divorce process. The Guardianship matter would likely delay the divorce until a Guardian is appointed.

Conclusion

Guardianships play a crucial role in divorce when one spouse is incapacitated.
New York courts will not proceed with a divorce unless the incapacitated spouse’s rights are fully protected—usually through the appointment of an Article 81 guardian, a GAL, or both.

Guardians ensure fairness, prevent exploitation, and allow divorce to move forward even when one party cannot advocate for themselves.

Are you facing a divorce where one spouse is incapacitated?
You may need a court-appointed Article 81 guardian or guardian ad litem before the divorce can proceed. Our law office has deep experience handling these sensitive matters and can help protect your spouse’s legal rights while moving the case forward ethically and efficiently.

We understand the emotional and financial complexity of divorce when capacity is an issue, and we can guide you through each step of the guardianship and matrimonial process.

Call now for a free consultation with an attorney experienced in both guardianship and divorce matters.
Phone: 347-692-0222
Email: 7622LAW@gmail.com