I've often been heard to tell potential clients that "it doesn't matter that you don't want a divorce. Your spouse can get a divorce for any reason or for no reason at all because Michigan is a 'no-fault' state." And that is sad, but true. All that is required is testimony that "There has been a breakdown in the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved."
Recent discussions among Michigan family lawyers reveal some confusion about how a divorce action can be initiated in cases where elderly parents are not living together (or are living very unhappily together) and one of the parties is suffering from dementia. Lack of competency to file for divorce is an issue--one that I'm afraid will arise more frequently given the advancing age of Baby Boomers. The Michigan Court of Appeals, in an unpublished decision, has now answered that question.
In In re Bentley, the wife appealed entry of a judgment of separate maintenance. The judgment divided the parties' real estate. Mrs. Bentley appealed on two grounds. First, she claimed that there was insufficient evidence to establish that the objects of matrimony had been destroyed. However, the record established the lack of harmony in the relationship. Additionally, the two had not lived together for about three years prior to the filing. Thus, the COA rejected her claim that the statutory grounds for divorce had not been met.
Defendant wife next argued that the trial court should not have been permitted to enter an order
terminating the parties’ rights in the marital property because Bentley was represented by a
conservator and was unable to consent to the complete distribution of the marital estate. Although this claim of error was unpreserved, the COA reviewed for plain error since substantial rights were affected.
Essentially, Mrs. Bentley, who was awarded 55% of the marital estate, wanted to preserve her statutory right as a spouse to inherit from Mr. Bentley upon his death. The COA made short shrift of this argument, stating:
"Because the relevant statutory authority does not limit the trial court’s ability to enter a
judgment for separate maintenance terminating the parties’ rights in marital property when the
action was initiated a conservator, see discussion infra, we find that the trial court did not plainly err by entering the judgment."
The opinion provides a nice roadmap for handling divorce and separate maintenance cases where one of the parties is incompetent and needs to be represented by a guardian and conservator.