Conservatorships made the news last year as famous singer Britney Spears was released from her conservatorship for the first time in thirteen years. One of the first things Spears did when it became clear her conservatorship was near its end was to get engaged to Sam Asghari, her longtime boyfriend. Why? Because someone under a conservatorship cannot get married without the permission of their conservator.
Getting married isn’t the only thing that a conservatorship can prevent. It can also complicate the divorce process significantly. Here’s what you need to know about conservatorships, how they work, and how they may impact your divorce.
What Is a Conservatorship?
A conservatorship grants a person or organization the right to make legal decisions for another adult. Typically, conservatorships are given to family members after an adult is declared incapacitated for some reason. Common reasons for conservatorships include:
- Sudden illnesses that prevent the adult from making their own decisions, such as comas or severe head injuries
- Chronic conditions that slowly reduce the adult’s ability to make decisions, such as Alzheimer’s or Parkinson’s disease
- Lifelong mental or physical disabilities like cerebral palsy that prevent a person from being able to manage their own care when they become an adult
Any adult who is declared incapacitated may be placed under a conservatorship. The specific authority granted to conservators depends on the situation. Common forms include:
- Limited conservatorships: Adults with limited capacity may retain the right to make certain decisions, such as where they work and who they associate with. The conservator will only have the right to handle specific matters, such as providing limited financial management.
- Conservatorships of person: If a person cannot care for themselves, this type allows the conservator to make medical and care decisions on their behalf, such as placing someone in a residential care facility.
- Conservatorships of estate: The conservator is granted the right to manage the person’s finances entirely, including paying bills and deciding how they may spend their money.
Someone who is significantly incapacitated may be placed under conservatorship of estate and person. The positive rights granted to the conservator are often removed from the person. For example, Britney Spears lost the right to marry without her conservator’s approval. Someone under conservatorship of estate cannot make purchases, and someone with a medical conservator cannot check themselves out of a care facility without their conservator’s permission.
How Conservatorships Impact Divorces
There are many ways conservatorships can affect a divorce. You and your spouse may have a joint conservatorship over your adult, disabled child. Your spouse may be under a conservatorship themselves. You may even be your spouse’s conservator. Here’s how these arrangements may affect your split.
If your spouse is under a conservatorship, you are still eligible to get divorced. Divorce does not require the other party’s consent, so your partner’s conservator cannot prevent the divorce from becoming final. However, the conservator will likely be involved in asset division negotiations alongside or instead of your spouse. They are responsible for protecting your spouse’s best interests, so they must negotiate on their behalf as if it were their own.
If you are your spouse’s conservator, this can make divorce more complex. As a conservator, you are likely responsible for making financial decisions on their behalf. If you’re getting divorced, this places you in the uncomfortable position of trying to divide assets fairly from both perspectives. For that reason, the court may require you to resign as conservator due to a conflict of interest. This is also why courts have a preference against naming spouses as conservators if there is a likelihood of divorce.
A conservatorship may increase the likelihood of receiving full custody of your children. If someone is considered incapacitated by the court, they may not be regarded as able to care for a child. Should the conservator can petition for shared child custody on your spouse’s behalf, you may have a strong argument against it. In any case, it’s best to consult with an experienced family law attorney to ensure that you approach the matter correctly.
Adult Child Conservatorships
If you have a disabled adult child, you and your spouse may have a joint conservatorship over them. This can lead to disputes similar to those in child custody cases. There are two ways to address joint conservatorships of adult children. You may choose to continue as joint conservators, granting both of you the right to make decisions on your child’s behalf. Otherwise, one of you may opt to resign as a conservator.
Joint conservatorships do not require the conservators to develop materials like a parenting plan. However, California law states that both parents have an obligation to support an incapacitated adult child who cannot earn a living. This means there may be the question of child support even though they’re adults.
If this comes up in your divorce, know that you do not always need to pay the support funds to the other conservator. Instead, you can pay them to your child directly. As a conservator, you may also be able to set up a trust that ensures that the support funds are only used to care for your child.
Don’t Let a Conservatorship Impede Your Divorce
If a conservatorship is involved in your split, it’s best to be proactive about handling the matter. The sooner you consult an experienced family law attorney, the faster you can determine the best path forward. Kaspar & Lugay, LLP has years of experience helping couples address complex legal and financial matters during divorce. We can help you understand how a conservatorship may impact your split and guide you through the process of dissolving your marriage despite it. Schedule your consultation today to learn more about how we will work with you to resolve complex issues in divorce and achieve the best possible outcome in your split.