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If one spouse files for divorce or legal separation in California, may the other spouse stop the process by arguing the filing party doesn’t know what he is doing?

That was more or less the situation in a recent case decided by the California Court of Appeal entitled Marriage of Greenway. In Greenway, the parties had been married for 48 years when the husband, who was 76 years old and a retired dentist, filed a petition for legal separation.  The wife tried to stop the case, arguing that the husband was mentally incompetent.

In the end, the trial judge ruled against the wife, saying “I have concluded that [Husband] is capable of making a reasoned decision of consequence, i.e., he is capable of making the reasoned decision to end his marriage”.

The Court of Appeal affirmed.  The appeals court said “mental capacity can be measured on a sliding scale, with marital capacity requring the least amount of capacity, followed by testamentary capacity, and on the high end of the scale is the mental capacity required to enter contracts”.  The court added that even “a person under a conservatorship, who is generally without contractual power, may be deemed to have marital capacity”.

Reading the opinion further, one notes the observation that “old age, feebleness, forgetfullness, filthy personal habits, personal eccentricities, failure to recognize old friends or relatives, physical disability, absent-mindedness and mental confusion” do not provide grounds for stopping the divorce.

The court also reaffirmed the standard of getting a divorce in California:  “irreconcilable differences”.  Irreconcilable differences means that there are “substantial reasons for not continuing the marriage and which make it appear the marriage should be dissolved”.  Fault is not relevant; it hasn’t been since 1969, when California moved to a no-fault divorce process.

This appeals case arose out of Orange County but was decided by a retired San Diego judge, the Hon. Thomas R. Murphy, acting as a temporary judge as permitted by the California constitution.