Competency Issues in Family Law

The competency of a party can have profound effects in family law in California. We will explore that a little in this post.

First of all, whether or not a party is competent can be relevant as to the validity of the marriage contract itself. Pursuant to Family Code section 2210(c), a marriage is voidable if either party to the contract is of unsound mind. In other words, if they are not competent to enter the marital contract, the marriage can later be annulled. Here’s a little known fact about annulments: parties other than the husband and wife can bring them. They can even be brought after the husband or wife has died. It is not unusual for the child of a parent to bring a nullity action after their parent has died, based on unsound mind, if their parent had competency issues and the new marriage results in that child being cut off from the inheritance.

What happens if competency issues arise during divorce? Parties need to tread carefully here. If the Court determines that a party is incompetent, that party will not be able to proceed as usual. The law requires that the party either have a conservator appointed for them, which is done in Probate Court, or have the family court appoint a guardian ad litem for them. If a family member is available to manage the incompetent party’s financial affairs, a conservatorship may be preferable because, unlike with a guardian ad litem, a conservator does not need to be represented by an attorney. A guardian ad litem, however, is considered to be practicing law and thus must be an attorney or must be represented by an attorney. Again, this area of the law can be tricky. In a conservatorship, the family law attorney and the probate attorney must work together hand in hand to make sure all bases are covered.

Finally, it must be noted that even if a petitioner has a conservator or a guardian ad litem, the petitioner must have a basic, but minimal level, of understanding of the proceedings. If not, the Court is required to dismiss the Petition. To avoid this, we recommend that an incompetent party either file for legal separation or wait until the other party files so the incompetent party can be the respondent.

Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-­793-­8884 in Del Mar, Carmel Valley, North County or San Diego.

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