Capacity Issues in Divorce

Adult parties to a marriage generally have the capacity to bring or defend the action in their own name without the appointment of any guardian or other representative.  However, there are instances in a divorce action where a parties’ capacity is called into question and there needs to be an appointment of a guardian or other representative.

The fact that there is some question as to a party’s mental capacity does not automatically mean that he or she is incapable of instituting or responding to the action. Divorcing spouses accuse each other of mental illness or infirmity with some frequency. The initial burden of addressing the validity of any questions of mental competence may fall on the party’s attorney.

The appointment of a guardian ad litem may be necessary if there is some legitimate concern about the mental competence of a party to participate in the proceeding.

Colorado Rules of Professional Conduct, Rule 1.14 sets forth the guidelines for an attorney representing a client under a disability, including a mental disability. Specifically, that rule permits counsel to seek the appointment of a guardian ad litem when the attorney reasonably believes that the client is unable to act in his or her own interests. As a result, there may be instances in which the lawyer and the client are in disagreement as to whether a guardian ad litem is needed.  In such a situation it is critical that the court hold a hearing on the issue of whether or not the spouse is competent.

In a dissolution of marriage proceeding, it has been found that it would be an abuse of discretion not to appoint a guardian ad litem in those situations where the spouse: (1) is mentally impaired so as to be incapable of understanding the nature and significance of the proceeding; (2) is incapable of making critical decisions; (3) lacks the intellectual capacity to communicate with counsel; or (4) is mentally or emotionally incapable of weighing the advice of counsel. IRM Sorensen, 166 P.3d 254 (Colo. App. 2007) (click here for the case details).

The standard in Colorado is that a court should appoint a guardian ad litem for a litigant in family law proceedings when the court is reasonably convinced that the party is not mentally competent effectively to participate in the proceeding. Further, the preferred procedure when a substantial question exists regarding the mental competence of a spouse in a domestic relations proceeding is for the trial court to conduct a hearing to determine whether or not the spouse is competent, so that a guardian ad litem may be appointed if needed.

The need for a guardian ad litem for an incompetent spouse can impact not only the relationship between that spouse and his or her lawyer, but also the validity of any subsequent agreements or orders. As a result, the opposing spouse may also have an interest in assuring that any questions of competency are resolved prior to any trial or settlement.

A guardian or conservator of an incapacitated person cannot represent the ward in court proceedings such as appeals from domestic relations actions without an attorney.

Kalamaya | Goscha is a Colorado law firm founded by Ryan Kalamaya and Amy Goscha. We guide and support clients through divorce. Our boutique mountain law practice specializes in divorce, child custody, and family law. Kalamaya | Goscha has law offices in Edwards, Aspen, and Glenwood Springs. To speak to one of our capable attorneys call (970) 315-2365.

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