Section 372 of the Code of Civil Procedure stated that when an incompetent person is a party to a lawsuit, he or she must appear either by a guardian or a conservator of the estate or by a guardian ad litem appointed by the court. A conservator is generally appointed for individuals who lack mental capacity including adults who are severely disabled or suffer from schizophrenia, dementia or Alzheimer’s Disease. A guardian ad litem is a person appointed by the court to protect the rights of a mentally incompetent person for the duration of a legal action to which he or she is a party.
Under Marriage of Higgason (1973) 10 Cal.3d 476, a person under conservatorship may initiate and maintain a divorce proceeding through a guardian ad litem (“GAL”) if the court determines that he or she is able to “exercise a judgment” and express a desire to be divorced.
On the other hand, a mentally competent person filing for divorce does not have to go through a guardian ad litem. However, if the opposing party is mentally incompetent or otherwise under the care of a conservator, the court generally will appoint a GAL to represent and protect the spouse’s interests.
In sum, if you are filing a divorce petition against your spouse who may be mentally incompetent, it is necessary to bring this information to the court’s attention and request that the court appoint a GAL for your spouse.
****The opinion above is not intended to be legal advice and absolutely does not create
any attorney-client relationship between its author and the readers. Please consult an attorney for information or advice specific to your legal issue.****
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