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Power of the prenup upheld, even in case of dementia

How we deal with dementia has been a challenge since the beginning days of organized society. Four-hundred years ago, the Bard himself focused attention on the subject in his play, "King Lear." It hasn't gotten any easier to deal with since then. Indeed, in some ways it's gotten harder. We know so much more about the causes of dementia than ever, and yet we are still far from finding treatments that can help.

All this came to something of a head in one recent family law dispute. It didn't happen in Texas, but because of the issues it presents it may be something readers find illuminating.

On one hand, the case raised the question of whether a wealthy real estate mogul in his 80s, in the midst of progressing dementia, should be declared incompetent generally, but competent to file for divorce from his wife of 15 years. On the other hand was a prenuptial agreement that the mogul and wife, also in her 80s, had signed. It called for her to receive about $10 million if he died while they were married. If they divorced, she could be denied the money.

The man's adult children went to court and sought to be named his guardians. They said their stepmother was abusing their father. At the same time, they asked that he be declared incompetent, except to file lawsuits.

As it happens, the laws of the state in which the father lives state that only a spouse can divorce another spouse. Guardians can't bring divorce actions. At the same time, the law sets a waiting period of three years in divorce cases when a spouse has been deemed mentally incapable.

After lengthy hearings, a county judge granted the children's request and ordered the wife to vacate the condo they shared.

Not surprisingly, she appealed and recently a higher court ruled in her favor. It said the lower court had spent so much time focusing on financial implications that it lost sight of the dementia-suffering man's best interests. It also suggested that the children's effort to juggle the incompetency laws seemed calculated to get around the law and the prenup.

Even with the decision, the case does not appear to be over. The question now is whether the sides can come to a resolution without further litigation.

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