[OH] Is a guardian required for a spouse with dementia in divorce?

Lexi, Chatbot

Have you discussed your husband’s dementia diagnosis and his needs with the attorney during the consultation?

Lexi, Chatbot

Is there anything else the Family Lawyer should know before I connect you? Rest assured they’ll be able to help with your husband’s dementia diagnosis.

EsquireChamp

Greetings, my name is Esquirechamp. I see you have a question related to divorce and your husband’s dementia diagnosis. What is your specific question and additionally what state is this occurring as different states have different laws on the matter?

EsquireChamp

Yes, I see you said the following: "I have had a preliminary consultation with a divorce attorney. The retaining cost is $4,000 which is a bit steep currently. I decided to file the preliminary paperwork myself as a result. If, in fact an atty is needed further into the process I plan to certainly secure that service. My husband was diagnosed with dementia last October and his needs far outweigh what I am reasonably able to provide.

During consult with the atty, she mentioned that the state may mandate a representing advocate Husband due to his diagnosis. Is this the case? Additionally, my children sold the home to us with $60,000 equity for my sake to be close to the grandchildren. Can this be considered. I have not filed yet."

EsquireChamp

Okay, thank you for the clarification. Give me a moment to give you/write my response.

EsquireChamp

Your questions raise two primary legal issues: (1) whether the state of Ohio mandates the appointment of a guardian or advocate for a spouse diagnosed with dementia in divorce proceedings, and (2) whether the equity provided by your children in the sale of the marital home can be considered in the division of property during divorce proceedings. Below is a detailed analysis of these issues based on the relevant legal sources.

Appointment Of A Guardian Or Advocate For A Spouse With Dementia

Ohio law does not automatically mandate the appointment of a guardian or advocate for a spouse diagnosed with dementia in divorce proceedings. However, courts may appoint a guardian ad litem (GAL) or take other protective measures if the spouse is adjudicated incompetent and unable to represent their own interests. Under Ohio Civil Rule 17(B), a court may appoint a GAL for an incompetent adult when the individual is not otherwise represented in the action (Thomasson v. Thomasson, 153 Ohio St.3d 398 (2018)).

This appointment typically requires a prior adjudication of incompetency, notice, and an opportunity for the affected party to be heard, as failure to provide these procedural safeguards violates due process rights (Thomasson v. Thomasson, 153 Ohio St.3d 398 (2018)).

Case law further clarifies the circumstances under which a guardian or GAL may be involved in divorce proceedings. In Boyd v. Edwards, the court held that when a guardian files for divorce on behalf of an incompetent ward, the court must ascertain whether the ward is capable of expressing their intentions regarding the divorce before proceeding (Boyd v. Edwards, 4 Ohio App.3d 142 (1982)). Similarly, in Bakhtiar v. Saghafi, the court emphasized that a guardian’s actions in pursuing a divorce must align with the ward’s expressed wishes, even if the ward has been adjudged incompetent (Bakhtiar v. Saghafi, 75 N.E.3d 801 (2016)).

Additionally, in Thomasson v. Thomasson, the Supreme Court of Ohio vacated a trial court’s order appointing a GAL for an adult in a divorce case because the appointment was made without prior notice or a hearing to determine the adult’s competency. The court held that such an appointment violates due process rights and is improper unless preceded by an adjudication of incompetency (Thomasson v. Thomasson, 153 Ohio St.3d 398 (2018)).

In summary, while Ohio courts may appoint a guardian or GAL for a spouse with dementia in divorce proceedings, such appointments are not mandated by law and require specific findings of incompetency and adherence to procedural due process.

Consideration Of Equity Provided By Children In The Sale Of The Marital Home

Under Ohio Revised Code § 3105.171, courts are required to equitably divide marital property in divorce proceedings. Marital property includes all real and personal property acquired by either or both spouses during the marriage, as well as any appreciation or income derived from separate property due to the contributions of either spouse during the marriage (R.C. § 3105.171). Separate property, on the other hand, includes property acquired before the marriage, gifts made to one spouse, and property excluded by a valid antenuptial agreement (R.C. § 3105.171).

The equity provided by the user’s children in the sale of the marital home may be relevant to the court’s determination of whether the home constitutes marital or separate property. If the equity was gifted solely to the user and can be traced as separate property, it may be excluded from the marital property division (R.C. § 3105.171). However, if the equity was commingled with marital assets or used to acquire or improve the marital home, it may be considered marital property subject to equitable division (R.C. § 3105.171).

In determining the division of marital property, courts consider various factors, including the duration of the marriage, the assets and liabilities of the spouses, and any other factor deemed relevant and equitable (R.C. § 3105.171). For example, in Salameh v. Doumet, the court considered financial contributions and investments made by third parties in the marital home when dividing property (Salameh v. Doumet, 151 N.E.3d 83 (2019)). Similarly, in Walters v. Walters, the court noted that mental health considerations and the desirability of awarding the marital home to one spouse may influence property division (Walters v. Walters, Not Reported in N.E.2d (2013)).

Ultimately, whether the equity provided by your children will be considered depends on the specific facts of the case, including the nature of the equity transfer and its impact on the marital home. The court has discretion to determine what constitutes equitable division based on the circumstances presented.

In conclusion, Ohio law provides mechanisms for appointing a guardian or advocate for a spouse with dementia in divorce proceedings, but such appointments are not automatic and require specific findings of incompetency. Additionally, the equity provided by your children in the sale of the marital home may be considered in the division of property if it is deemed marital property or relevant to achieving an equitable outcome.

EsquireChamp

Let me know if you have any clarifying questions.

EsquireChamp

Okay, I see. I understand how complicated the situation is especially when dementia is involved with divorce. In a divorce case involving a spouse with dementia, Ohio law provides specific guidance on legal representation, property division, and settlement options. Additionally, state requirements regarding legal representation for a spouse with dementia in divorce proceedings are addressed through statutory and case law principles.

Legal Representation And Guardianship For Spouse With Dementia
Ohio law recognizes that a spouse with dementia may require special legal representation in divorce proceedings. If a spouse has been adjudicated incompetent, a guardian may be appointed to act on their behalf. Under Civ.R. 17(B), a guardian has the authority to sue or defend on behalf of an incompetent person, including in divorce actions (Broach v. Broach, 177 Ohio App.3d 664 (2008)). However, courts have held that a guardian cannot bring a divorce action on behalf of an incompetent spouse whose mental incapacity precludes them from testifying or expressing their intentions regarding the divorce (Boyd v. Edwards, 4 Ohio App.3d 142 (1982)), (Boyd v. Edwards, Not Reported in N.E.2d (1982)).

In cases where a spouse has been declared incompetent, the court must determine whether the spouse is capable of expressing their wishes regarding the divorce. For example, in Boyd v. Edwards, the court emphasized that a guardian cannot pursue a divorce on behalf of an incompetent spouse without first determining the spouse’s competency to testify and express their intentions (Boyd v. Edwards, 4 Ohio App.3d 142 (1982)). Similarly, in Bakhtiar v. Saghafi, the court upheld a divorce initiated by the spouse before their incompetency, noting that the guardian’s continued prosecution of the case aligned with the spouse’s expressed wishes (Bakhtiar v. Saghafi, 75 N.E.3d 801 (2016)).

If a guardian is appointed, procedural safeguards must be followed. For instance, in Thomasson v. Thomasson, the Ohio Supreme Court held that appointing a guardian ad litem (GAL) for an adult without prior notice or a competency hearing violates due process rights. The court emphasized that such appointments require an adjudication of incompetency and an opportunity for the affected party to be heard (Thomasson v. Thomasson, 153 Ohio St.3d 398 (2018)).

Division Of Marital Property And Settlement Options
Ohio law requires equitable division of marital property in divorce proceedings. Under R.C. § 3105.171, marital property includes all real and personal property acquired during the marriage, while separate property includes assets acquired before the marriage or through inheritance (R.C. § 3105.171). Courts must divide marital property equitably, considering factors such as the duration of the marriage, the assets and liabilities of the spouses, and the desirability of awarding the marital home to the spouse with custody of children (R.C. § 3105.171).

In the context of the marital home valued between $225,000 and $245,000, with a $193,000 mortgage and $60,000 original equity from the children’s sale, the court would likely classify the home as marital property if it was acquired during the marriage. The equity contributed by the children may be considered separate property if it can be traced and proven by clear and convincing evidence (R.C. § 3105.171). The court may order the sale of the home or award it to one spouse, depending on what is equitable under the circumstances.

Regarding settlement options, Ohio law permits distributive awards to achieve equity between spouses. A $20,000 buyout to the spouse with dementia may be considered equitable if it reflects the spouse’s share of marital property and accounts for the financial contributions of the sole breadwinner (R.C. § 3105.171). Courts may also consider the economic desirability of retaining the marital home intact and the tax consequences of property division (R.C. § 3105.171).

Proceeding Without Initial Attorney Representation
Ohio law does not mandate attorney representation in divorce proceedings, allowing individuals to proceed pro se. However, given the complexity of issues involving a spouse with dementia, including guardianship and property division, retaining an attorney later in the process may be advisable. Courts have recognized that individuals can negotiate settlements without initial legal representation, as seen in Hoover Kacyon, LLC v. Martell, where a spouse successfully obtained additional settlement funds without counsel (Hoover Kacyon, LLC v. Martell, 125 N.E.3d 265 (2018)).

State Requirements For Legal Representation Of Spouse With Dementia
Ohio courts require that a spouse with dementia be represented by a guardian or GAL if they are adjudicated incompetent. The appointment of a guardian must follow procedural rules, including a competency determination and adherence to due process rights (Thomasson v. Thomasson, 153 Ohio St.3d 398 (2018)). If the spouse is capable of expressing their wishes, the court must consider their testimony and intentions before granting a divorce (Boyd v. Edwards, 4 Ohio App.3d 142 (1982)). In cases where the spouse initiated the divorce before being declared incompetent, the guardian may continue the action if it aligns with the spouse’s expressed wishes (Bakhtiar v. Saghafi, 75 N.E.3d 801 (2016)).

In summary, Ohio law provides mechanisms to address the unique challenges of divorcing a spouse with dementia, including guardianship, equitable property division, and settlement options. Courts emphasize procedural safeguards to protect the rights of the incompetent spouse while ensuring fairness in the division of marital assets.