Can I file for divorce if my husband is mentally incompetent?

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Can I file for divorce if my husband is mentally incompetent?

My husband and I separated 3+ months ago, and I just found out from his parents (where he was living) that he has stopped taking his medication for his schizophrenia. He refuses to get back on them, and i see his mental health is declining. He is now living on the streets. I’ve had him here sleep on the couch out of guilt but this is not a solution and I am not helping him by doing so. He has asked me to file for divorce in a text message at 1 in the morning. Is he legally allowed under this condition to be signing these types of papers?

Asked on August 28, 2011 California

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

He doesn't have to agree to a divorce. You live in a state wherein irreconcilable differences rule. You can simply file for divorce and since California is not an at-fault state, your divorce will be granted. The only issues will be that regarding the community property laws. Anything you earned or acquired as an asset or liability during the time you were married and prior to proof of separation is considered community property and will be split down the line. So, if you earned income after he moved out and that is your separation date (living separate and apart with no possibility of reconciliation), that income would be considered your separate income. His competency will be an issue that might need to be addressed by the court but again keep in mind that a no-fault divorce cannot be stopped simply because one person does not wish to be divorced.


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