In Ohio, if a litigant becomes incapacitated DURING a divorce action that he/she had previously filed, a Guardian can be appointed and this Guardian can continue on in the action, in the place of the now incompetent litigant. This makes sense. The litigant, prior to his/her incompetency (which could be by disease or accident), showed INTENT to terminate the marriage. So, the Guardian would know that he/she was fulfilling the desires and intentions of this litigant by seeing the case through.
But, what if Sally, who has been married to her second husband, Bill, for 20 plus years (and inherited an enormous amount of money from her first husband) never got a Prenuptial Agreement from Bill, and therefore upon her death, if she is still married to Bill, Bill would inherit the entirety of her estate? Then, Sally has a stroke. She can no longer talk, walk, and is now mentally incompetent. She has never previously stated to anyone that she no longer loves Bill, nor has she previously stated to anyone that she wants out of the marriage.
In comes Greg, Sally’s son. He never liked Bill. And he becomes appointed as the Guardian for his mother. Can he commence a divorce action (even though he may have some personal motives for making sure his mother is single at the time of her death???).
Ohio law is made by our legislators and by real people such as yourself who had cases that made it all the way up to the Appellate Court and sometimes up to the Ohio Supreme Court. Once these courts create a holding, we as attorneys and judges can look to these cases as guidance.
This brings us to the case of Broach v. Broach, 2008 WL 3582809 (Ohio App. 2 Dist). In this case, the trial level court stated that someone such as Greg, could not initiate such a divorce, specifically stating that it would not be possible to determine the will of an insane person in so personal a relationship as marriage.
BUT, the Appellate Court disagreed, stating that the son COULD file such a divorce.
Good attorneys can distinguish such cases from the facts of YOUR case. The attorneys at Joseph & Joseph, Co. LPA stand ready to work with you, and look forward to meeting with you.