Can You Divorce a Spouse with a Severe Cognitive Impairment in Illinois?

 Posted on July 22, 2025 in Divorce

If you are considering a divorce from your spouse who has been diagnosed with Alzheimer’s, dementia, or some other form of severe cognitive impairment, you have probably already experienced some of the emotional challenges. There are also legal challenges associated with divorcing a spouse with any form of severe cognitive impairment, as well as societal judgment.

While you may be dealing with a spouse who no longer recognizes you, or who has become angry and abusive as a result of the cognitive impairment, Illinois law (750 ILCS 5/ Illinois Marriage and Dissolution of Marriage Act) requires that certain standards be met in any divorce. One of these standards is that both parties must have the capacity to participate in the proceedings.

This is a heartbreaking situation that can feel as though there are no good solutions. To better understand the legal steps and ethical considerations involved in divorcing a spouse with severe cognitive impairment, it is extremely important to consult with a St. Charles, IL divorce lawyer.

What Does "Legal Capacity" Mean in an Illinois Divorce?

In the context of an Illinois divorce, legal capacity refers to an individual’s ability to understand the legal implications of divorce and to make rational decisions regarding the terms of the divorce. Both parties must be able to:

• Understand all the documents, including the Petition for Divorce, the Marital Settlement Agreement, and any special court orders.
• Grasp the consequences of the decisions being made regarding support, property division, and the allocation of parental responsibilities, if minor children are involved.
• Act on one’s own behalf or direct an attorney to act on his or her behalf.

Factors affecting legal capacity include mental impairment, intoxication, or age. If a party to an Illinois divorce lacks the necessary legal capacity to make decisions or understand the process, agreements may be later challenged and even voided by the court.

What Happens in a Divorce When One Spouse Lacks Legal Capacity?

When one spouse’s legal capacity comes into question, a guardian ad litem or conservator could be appointed by the court to ensure the interests of the individual are protected and to make decisions on his or her behalf. The court could also appoint a "litigation friend" to assist the spouse with severe cognitive impairment. A conservator, guardian ad litem, or litigation friend has the legal authority to make decisions involving property division, spousal support, and any other applicable divorce decisions.

Division of Marital Property When One Spouse Requires Long-Term Care

Illinois is an equitable distribution state, which means marital assets are divided fairly, but not necessarily evenly. While there are many factors that judges use to determine the division of marital assets, if one spouse has long-term care needs, adjustments to the allocation of marital assets may be necessary.

The court will assess the financial implications of long-term care, including the impact an unequal property division will have on the non-incapacitated spouse. It will be determined whether the spouse with severe cognitive impairment will continue living in the marital home, his or her access to retirement funds, and the overall financial stability of the incapacitated spouse.

Finally, the court will consider Medicaid planning and asset protection, with a goal of balancing the legal rights to divorce with compassion and dignity. Spousal support will be determined using the same criteria as the division of marital assets, although the supporting spouse must have the necessary means to pay spousal support.

Contact a Kane County, IL Divorce Attorney

Divorcing a spouse with a severe cognitive impairment is a difficult emotional journey that requires planning, sensitivity, and an experienced St. Charles, IL divorce lawyer from Mirabella, Kincaid, Frederick & Mirabella, LLC. Whether your desire for a divorce is motivated by financial necessity, care decisions, or the reality of your changing marital relationship, MKFM Law will help you navigate this situation with clarity and compassion. We serve our family law clients at our offices in Kane County, DuPage County, and DeKalb County. Call 630-665-7300 to schedule your initial attorney meeting.