Family Law

Family Law News Issue 2, 2020, Volume 42, No. 2

Challenging Capacity

Justin O’Connell, CFLS

Justin M. O’Connell is a partner at Cavassa O’Connell, located in Monterey, California, where his practice includes family law and civil litigation. Mr. O’Connell is a Certified Family Law Specialist, served as a Commissioner on the California State Bar Family Law Advisory Commission from 2012 to 2015, and is currently the Legislation Chair of the California Lawyers Association Family Law Executive Committee (FLEXCOM). He has been the professor of Property Law at the Monterey College of Law since 2007, and a member of the Alternative Dispute Resolution Executive Committee for the Monterey County Superior Court since 2013.

On occasion, the trial court must adjudicate the capacity of a party to seek a dissolution of his or her marriage. This situation most often arises where the respondent does not desire to end the marriage and contends the petitioner does not have the capacity to do so.1When faced with this task, the trial court must focus on the applicable standard, the burdens of proof, and the relevant evidence.

There are many standards of capacity: to contract, to make a will, to make a trust, and to take other actions. However, the standard of capacity to end one’s marriage is a unique measure due to the type of decision one is making. This is because terminating such an intensely personal relationship is accompanied by a profound emotional impact and constitutes the severance of an inter-personal bond that individuals and our society hold to be of enormous significance. To properly adjudicate the capacity to end one’s marriage, the trial court should be aware of the applicable capacity standard, the burden of proof to meet that standard, and proper evidence used in the evaluation of capacity. The attorney representing the party whose capacity is being challenged should be prepared to carefully walk the trial court through the analysis and prevent straying from the applicable standard or introduction of irrelevant evidence. The attorney representing the party that is challenging capacity should be prepared to meet the associated high burden to proof.

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