Published Divorce Law Opinion from Ky Court of Appeals October 30,2015: Disability Affecting Ability to File for Divorce

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Husband, previously adjudicated to be disabled and incompetent, filed for divorce from his wife, who was also his guardian and conservator. The trial court entered an order dismissing husband’s Petition for Dissolution, as “an incompetent person cannot bring or maintain an action for dissolution of marriage” in the Commonwealth of Kentucky. Husband appealed arguing he has standing to bring the dissolution action and should not be limited by the finding of disability and incompetence.

Husband argues that the “lucid interval” doctrine used in certain probate cases should be extended to enable an incompetent individual to dissolve his or her marriage. The Appellate Court declines to extend the doctrine to dissolution proceedings. Husband also argues that KRS 403.150 contemplates a dissolution petition being filed by someone other than a member of a married couple, but the Court of Appeals holds the statute “unambiguously indicate[s] that only the actual parties to the marriage may commence the dissolution action.” Finally, husband makes a public policy argument. The Court of Appeals looks to the Kentucky Supreme Court Case of Johnson v. Johnson, 294 Ky. 77, 170 S.W.2d 889 (1943), holding Johnson is binding precedent preventing the court from allowing an incompetent person to bring an action for divorce even after considering the public policy implications. Ultimately, the Court of Appeals affirmed the trial court order dismissing the petition for dissolution of marriage.

Digested by Elizabeth M. Howell

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