Three Years?

By Michael H. Gora

“The law is an ass” originates in Charles Dickens’ Oliver Twist, when the character Mr. Bumble is informed that “the law supposes that your wife acts under your direction”.

Picture this:  The professional young lady after a few years realizes that her husband is a drunk.  Well, no, not just a Saturday night, Sunday football afternoon drunk but an alcoholic; a person who would rather make love to a Bud Light than to her.

Best of times and worst she finds herself pregnant, and decides to hold on a bit to see if their little girl would encourage husband to changes his ways.  Surprise, surprise…it did not.

A divorce ensued.  The parties fought over child care issues.  The wife sought and got temporary exclusive parenting rights and the husband had supervised visitation only because of his alcoholism and the Judge’s fear of the husband driving his car with the child a passenger.

The final hearing in the divorce case was set to start in about a month.   The Husband’s lawyer had withdrawn for lack of payment.  Word came though the Husband’s camp that he had fallen, cracked his head and was in a coma.   The trial was cancelled; the husband in limbo as was the wife.

“When can I get divorce,” she asked.  After a brief visit with our Trust and Estates partner to confirm what I already knew I had to tell her that if her husband remained in a coma, or became mentally incompetent as the result of his fall she would have to wait for three years after he was officially found to be incompetent to get divorced.

I concluded that if he were to become incompetent he would have a guardian who could negotiate a marital settlement agreement with her, but the marriage could not be ended for three years under a Florida statute.  I also told her that while she could bring an Incompetency case to court herself she could not be the guardian because they were in a divorce case against one another.

Money was thin all around and not the real issue in the divorce case.  The woman had a job with a reasonable paycheck but could not afford to start another case in probate court.

All told she appears to be between a rock and a hard place.  It also appears that there should be a more flexible path for a person in her situation, albeit unusual, to be able to go ahead with her life.  Her income disables her from getting assistance from the local Legal Aid office.

Who knows what happens next.

Michael H. Gora has been certified by the Board of Specialization and Education of The Florida Bar as a specialist in family and matrimonial law, and is a partner with Shapiro Blasi Wasserman & Gora P.A. in Boca Raton.