[OH] [OH] I am trying to divorce my husband, who was diagnosed with dementia. What are the legal considerations?

Greetings, my name is Esquirechamp. I see you have a question related to divorce and your husband's dementia diagnosis. 

Your questions raises two primary legal issues: (1) whether the state of Ohio mandates the appointment of a guardian or advocate for a spouse 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))[1]. 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))[1].

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))[2]. 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))[3].

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))[1].

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)[4]. 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)[4].

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)[4]. 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)[4].

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)[4].

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.

Okay, I see. I understand how complicated the situation is especially when dementia is involved with divorce.