Q: Can I request my husband's mental competency info for divorce discovery?

A: We must refer this asker to her lawyer to get a response to this question. We know nothing of her facts and cannot provide legal advice anonymously. There appears however a teaching point that we can explore to the benefit of the asker and any reader.

In the American mindset, a psychologically impaired opponent is an easy kill. In a field of battle, we consider it a victory if we can easily defeat the opponent. The same may not be true in a court of law.

As the asker states she is in a divorce action, she may be shooting herself in the foot by working hard to paint the husband opponent as being psychologically debilitated. There are two outcomes in any civil proceeding: a trial and decision, or a stipulation (an agreement in writing) co-signed by the judge. By striving to have the court deem the opponent mentally incompetent, she is cutting away that branch of her case that can end in agreement.

Capacity to contract is a fundamental requirement to agree to anything. A contract is void if one party is mentally unfit to enter into it. Producing evidence of mental infirmity can drive litigation costs through the roof because trials on every issue would have to take place draining away the martial res as lawyers (and possible expert witnesses) need to be paid.

There is also the missing piece about what is the relevance of such a psychological display of the opponent's infirmity. The asker states she needs to determine actions concerning the divorce and potentially prepare for probate. That may be her personal goal for her own satisfaction, but unless there are children, a court would have no basis to field issues regarding mental competency. The husband would object to any discovery of his infirmity and the court should deny that request.

This is only a cursory analysis that may be incorrect. We have none of the facts and know nothing of the procedural history of this asker's divorce case. She must address her questions to her attorney as we are not a second opinion to her proceedings.

A: I understand that navigating a divorce while also dealing with your husband’s declining health and concerns about his mental capacity can be incredibly stressful. It’s even more difficult when significant financial assets have been spent and you’re unsure of your legal options moving forward. In New York, there are steps you can take to protect yourself and the marital estate, especially if your husband may no longer be competent to manage his affairs.

If you suspect that your husband is mentally incompetent, and this is impacting his ability to participate in the divorce or manage assets appropriately, you can ask the court to appoint a guardian ad litem (GAL). A GAL acts in the best interest of a party who may be incapacitated. The court may appoint one upon motion if there is concern about a party's ability to understand and participate in the proceedings. If the court grants the motion, the GAL can then evaluate your husband’s mental state and help the court decide whether any accommodations or protections are necessary. This process may also help you gain limited access to medical information relevant to your husband's mental status.

In terms of the marital assets, if your husband has already spent a significant portion of joint funds in violation of court orders, you may be able to seek relief through a motion for enforcement or a claim for wasteful dissipation of marital property. Courts in New York may adjust the equitable distribution of remaining assets to account for one party’s misuse of funds. You should gather documentation of the accounts and expenditures as evidence.

Additionally, even though automatic orders prohibiting the transfer or dissipation of assets are generally triggered upon filing for divorce under Domestic Relations Law § 236, you can request a temporary restraining order or other court intervention if further asset depletion is a concern. These measures can help preserve what remains until equitable distribution is resolved.

Given your husband's health condition and the possibility that he is under hospice care, it may also be appropriate to consult with an attorney experienced in guardianship or probate matters in case your husband becomes legally incapacitated or passes away during the divorce. Taking legal steps now can help you protect your financial interests and prepare for any future developments.

This response is for general informational purposes only and does not constitute legal advice. For personalized guidance, please consult a qualified attorney licensed in New York.

A: You’re in a very difficult spot, and it’s completely reasonable to want clarity and protection—especially with so much financial strain and uncertainty about your husband’s condition. In New York, during divorce proceedings, you can request information related to mental competency as part of discovery, but it won’t be automatic. Because medical records are protected under privacy laws, you would likely need a court order to access them, particularly if your husband is unable or unwilling to consent.

If you believe his mental state is impacting the proceedings or his financial decisions, you can file a **motion asking the court to appoint a guardian ad litem** or to evaluate his capacity formally. That can open the door for the court to consider protective measures, such as freezing or safeguarding marital assets. Given that your husband has significantly depleted funds in possible violation of court orders, you can also request the court to account for that dissipation when dividing what remains.

To gain control over the remaining marital assets, you can file a motion for temporary relief, asking for exclusive control or restrictions on withdrawals. The court can intervene quickly if there’s risk of further loss or if your husband is unable to manage affairs responsibly. You’re doing the right thing by staying alert and prepared—it may not be easy, but you have every right to protect yourself and your future.