Alzheimer’s is an extremely terrifying and unforgiving disease. This disease severely affects a patient’s memory and intellectual abilities. In the later stages of the disease individuals lose the ability to carry on normal conversations, remember their surroundings and loved ones. In America alone it is estimated that 5.4 million people suffer from this catastrophic disease, and it is the sixth leading cause of death in the United States.
Considering the above, what happens when your spouse falls victim to this disease? Tara Parker-Pope explored Alzheimer’s and divorce in her New York Times Blog titled “Love, Divorce and Alzheimer’s,” which can be found here.
When talking about Alzheimer’s and divorce two important questions come to mind:
1. Is it morally correct to divorce someone who has fallen victim to Alzheimer’s?
2. What kind of mental capacity does somebody need to commence/defend a divorce action?
The first question is almost certainly answered subjectively. Some people may find that divorcing a spouse who has Alzheimer’s is immoral; since, upon marriage one vows, “til death do us part.” It could be argued that we should care for our spouse until the end, because we would expect the same if the roles were reversed. The opposition argues that Alzheimer’s is death, in life; therefore, one is morally relieved of the sacred vow. Television Evangelist Pat Robertson created controversy when he advised a caller to divorce his wife who had Alzheimer’s. Robertson maintained, “I know it sounds cruel, but if he’s going to do something, he should divorce her and start all over again, but to make sure she has custodial care, somebody looking after her.” In addition, Parker-Pope suggests that people with Alzheimer’s and other dementia related diseases sometimes form their own romantic relationships, such as retired Supreme Court Justice Sandra Day O’Connor’s husband.
Many legal questions are conjured when talking about divorce and Alzheimer’s. Before any of these questions are answered, the court must first examine whether a person’s mental capacity affects that person’s ability to complete a divorce proceeding. States such as New York have attempted to solve this problem. In Linda G. v. Norman G., Misc., Misc. 2d (N.Y. Sup. Ct. 2006) the court maintained that an incapacitated person by his guardian cannot sue for divorce, however, the court found that the law does not preclude an incapacitated person through his guardian, from defending a divorce. Moreover, in situations where a person affected with Alzheimer’s does not have an appointed guardian or the guardian is the suing spouse, courts will appoint a guardian to ensure that the defendant spouse is appropriately represented in the divorce proceedings.
Conversely, in Northrop v. Northrop, A.2d (Del. Fam. Ct. Apr. 3, 1998) the Delaware family court found that a guardian should not be permitted to initiate and maintain a divorce action on behalf of an incompetent ward; however, a divorce action does not automatically abate upon finding that the petitioner has become incompetent. The court further maintained that a hearing should be held to determine if the petitioner, when competent, expressed a strong desire to be divorced and whether it is reasonable to conclude that he would have proceeded with the divorce had he not been incompetent.
Even though the courts have attempted to protect the rights of defendants with Alzheimer’s in a divorce proceeding, couples could prevent painful litigation once a spouse has succumbed to the disease by placing provisions in documents such as prenuptial agreements. Despite all safeguards protecting a person affected with Alzheimer’s, a court cannot deny somebody the right to divorce. Even though the court will proceed with a divorce of a person affected with Alzheimer’s, divorcing a spouse with this disease will forever be judged in the court of public opinion.