While a client who has capacity can clearly file a divorce action, what happens when the client has capacity issues?

This is becoming more common as we see older adults divorcing, especially those in second marriages whose adult children do not get along. A case can be dismissed where the person filing does not have capacity to see.^[1] “It is an accepted principle of law that an action cannot be maintained by one who has no capacity to sue.”^[2]

The difficulty in a divorce is that the person filing the action must state under oath that the marriage is irretrievably broken.^[3] If the principal lacks capacity, then who may make that statement on their behalf?

Normally, an agent under a power of attorney can bring a lawsuit on the principal’s behalf. However, there are some powers that are so personal that they cannot be delegated – for example, the right to vote, the right to marry, and the right to divorce.^[4]

Heine v. Witt

There is very little case law on this issue, but in Heine v. Witt case, the wife was the petitioner in a divorce action.^[5]

After the divorce, the guardian of the estate for Ms. Witt, a mentally incompetent person, moved to vacate the divorce judgment. The argument made was that the defendant husband knew that his wife was not competent when the divorce was granted and permitted the divorce to go forward.^[6] The court held that Ms. Witt was not sane at the time of the divorce and that her husband and his attorney colluded to commit a fraud on the court because he knew that when the divorce was entered.^[7]

Bringing the Action

If the agent under a power of attorney cannot file, then perhaps a guardian will need to be appointed. A court in guardianship can delegate the power to file a divorce.^[8] If the person lacks capacity to sue, the agent under the power of attorney cannot allege that the marriage is irretrievably broken. And if there is no guardian, then the action cannot proceed because there is no one with authority to bring it.

In some cases, the responding party will be able to bring the action and will want the divorce, but if the responding party does not want the divorce, then the incapacitated individual cannot bring the divorce action. Remember that the mere filing of a divorce or legal separation causes the financial power of attorney to be terminated under Wis. Stat. section 244.10(2)(c). It is an inherent conflict of interest for a spouse to be an agent for the other spouse in a divorce action.

As a Respondent

What if the person who lacks capacity is responding to the divorce?

That poses a different situation, because the person filing can allege that the marriage is irretrievably broken. The other party is simply responding to the action, and if there is an agent under a valid power of attorney, they will often have the capacity to respond to litigation. If the Power of Attorney is broad enough then the agent can negotiate for the incapacitated person to reach a settlement. Of course, they cannot testify for the person except to reply to questions about the final agreement and court approval of the same.

Conclusion

When considering whether a person or their agent can file a divorce action, or defend against such an action, the attorney must consider what powers can be delegated in a power of attorney and what powers are too personal to delegate.

This article was originally published on the State Bar of Wisconsin’s Elder Law and Special Needs Blog. Visit the State Bar sections or the Elder Law and Special Needs Section webpages to learn more about the benefits of section membership.

Endnotes

[1] Wis. Stat. § 802.06(2)(a). ↩

[2] Joint School District No. 1 of Wisconsin Rapids v. City of Wisconsin Rapids Education Association, 70 Wis. 2d 292, 302, 234 N.W.2d 289 (1975)(citing to 59 Am.Jur.2d, Parties, p. 386, sec. 31). ↩

[3] Wis. Stat. § 767.217(2)(c). ↩

[4] See, e.g., 18 Wis. Prac. Elder Law §3.5 (2024 ed.) and Workbook for Estate Planners, at §11.36 (agent cannot make a will, vote, take marriage vows, perform personal service contracts or take oaths, citing In re Guardianship and Protective Placement of Murial K, 2002 WI 27, ¶ 27 n.6, 251 Wis. 2d 10, 640 N.W.2d 773 citing Wis. Op. Att’y Gen. 156, 157 (1988). ↩

[5] Heine v. Witt, 251 Wis. 157, 28 N.W.2d 248 (1947). ↩

[6] Id. at 159. ↩

[7] Id. at 166-67, 168. ↩

[8] See Wis. Stat. § 54.20(3). ↩