The American Bar Journal recently published an article about an interesting Kentucky divorce action. The article, entitled "Can mentally incompetent man obtain a divorce? Kentucky Supreme Court to decide," highlights the case of Elmer Riehle. Mr. Riehle, who has been adjudicated to be disabled and incompetent, is asking the Kentucky Supreme Court to overturn a 1943 decision which held that Kentucky law does not authorize a mentally incompetent person to divorce.
In 1996, the Delaware Family Court was faced with a similar question. Although the Court was generally opposed to allowing petitions to be filed or maintained on behalf of an incompetent person, the Court ultimately concluded that an absolute bar prohibiting these actions is not appropriate. In rendering its decision the Court stated,
This Court agrees with the courts of other jurisdictions that generally a guardian [of an incompetent person] should not be permitted to initiate and maintain a divorce action on behalf of an incompetent ward. But this Court also believes, in accordance with the more recent decisions in other jurisdictions, that an absolute bar to the initiation and maintenance of a divorce action on behalf of an incompetent spouse is not statutorily mandated and that such a bar could lead to inequitable and untenable results in certain cases, especially when the incompetent spouse, when competent, expressed a strong desire to be divorced and when evidence establishes that but for the incompetency, that spouse would have proceeded with a divorce action." Northrop v. Northrop, 1996 WL 861489, *9 (Del. Fam. Ct.).
In this day and age when people are living longer, and divorcing later in life, cases like Riehle and Northrop take on increasing importance.
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