How Does Mental Capacity Affect Florida Family Law?

Family LawFamily law can be complex and apply to a variety of matters in a person’s life. Matters such as marriage, divorce, and child custody are just some that can be encompassed within family law. While most family law matters such as divorce or child custody can be stressful, things can become even more complicated when there are allegations between parties of a lack of mental incapacity. Proving mental incapacity can be a difficult process since it is difficult to get a clear idea of what or how a person was thinking at any given moment. While mental incapacity has a range of effects on a variety of issues, there are three primary matters that may be affected by mental incapacity in Florida.


While most people might consider marriage to be an area of family law, they might not typically think of marriage as a matter that involves court action. In order for a marriage to be valid, however, both parties to a marriage must meet certain requirements, including:

  • They must both be of sound mind;
  • They must both understand the nature and effects of getting married; and
  • They must both be mentally capable of agreeing to marry.

While mental capability is a requirement, however, a pre-existing mental condition will not necessarily render them incapable marrying. Ultimately, it will be left to the court to decide whether an individual is capable of agreeing to marry. If a court should find that an individual is not capable of doing so, then that marriage will be deemed invalid. While a finding that a party was mentally incapable to agree to marriage is sufficient to nullify a marriage, mental incapacity can also have an effect on a marriage long after the ceremony.


Just as an individual’s mental capacity can affect the outcome of a marriage, it can also be a basis for divorce. Under Florida Statute 61.052, which states the rules regarding the dissolution of marriage, an individual may file for divorce if his or her spouse is deemed to be mentally incapacitated. While a finding of mental incapacity is necessary for this to support an action for divorce, under the statute, the incapacitated individual must have been deemed mentally incapacitated for at least three years prior to the filing of divorce. The purpose of this rule is to protect individuals who have become mentally incapacitated from being suddenly divorced or abandoned by their former spouses.

Mental incapacity may also prevent an individual from obtaining a divorce. In a recent Florida case, Zelman v. Zelman, the spouse that was deemed to be mentally incapacitated that filed for divorce. While Mr. Zelman, who suffered from dementia, was not able to file for divorce on his own, his children were able to file suit on his behalf. In addition to this, Mr. Zelman was deemed to be mentally incompetent less than three years prior to the filing of divorce. While the case was ultimately brought before the Florida Fourth District Court, the court in that case found that the lower court was in error when it found that Mr. Zelman was not competent enough to marry or to manage property, but was competent enough to file for divorce.

Separation Agreements

Separation agreements, such as prenuptial or postnuptial agreements, must be entered into by two parties who have the mental capacity to enter into such an agreement. If an individual is found to have been mentally incapable when the contract was entered into, then the court will likely hold that the entire contract was invalid. If, however, the individual was mentally capable at the signing, then the court will generally uphold the contract, even if the individual was judged to be mentally incapacitated at a later date.

Child Custody

Finally, there is the matter of child custody. In any child custody determination, courts are concerned solely with the best interests of the child. Understandably, this is a broad statement that can include a multitude of factors. Fortunately, the Florida statutes contain some guidance on the matter. Under Florida Statute 61.13, factors a court may consider when determining the best interest of the child include, but are not limited to:

  • The demonstrated ability of each parent to facilitate and encourage a close and continuing parent-child relationship;
  • The anticipated division of parental responsibilities after divorce;
  • The demonstrated ability of each parent to determine, consider, and act upon the needs of the child;
  • The length of time the child has lived in a stable environment;
  • The moral fitness of the parents;
  • The demonstrated ability of each parent to provide a consistent routine for the child; and,
  • The mental and physical health of the parents.

While the mental incapacity of a parent will not be the sole factor that the court looks at when making a custody determination, it will play heavily into the court’s determination, especially if the incapacity is deemed to be severe. Generally, the court will provide full custody to the opposing spouse, or in some cases, may even award the incapacitated spouse supervised visitation.