Unusual request for divorce in Kentucky

Elmer Riehle does not want to wait “until death do us part,” but he may not have a choice.

The 88-year-old wants to divorce Carolyn Riehle, saying the marriage is “irretrievably broken.” In court documents, she agrees. But Carolyn is more than Elmer’s wife. She is his guardian, a role she has had since 2008 when a six-person jury ruled Elmer was mentally incompetent, despite his objections.

Carolyn says she cares deeply for Elmer and he needs a guardian to stop him from wasting the family’s money on “internet overseas pyramid schemes.” Elmer says he is a prisoner in his own home, with Carolyn his court-appointed warden.

“A few bad financial decisions were used against me along with my age to get my wife control over all of my affairs,” Elmer wrote in a 2013 affidavit.

The Kentucky Supreme Court will wade into the dispute Friday when it hears arguments in the case.

Elmer filed for divorce in 2013, after a doctor diagnosed him with frontal lobe dementia. But Kentucky has not allowed a mentally incompetent person to divorce since 1943, when a precedent was set by the state’s highest court.

The case is one of the few instances of so-called incompetent divorces to be heard in Kentucky, and the first to reach the state Supreme Court.

According to Elmer’s attorney, Steven Megerle, Kentucky is one of 10 states that still prohibit mentally incompetent people from seeking a divorce. Twenty-six states allow some type of exception, while 14 have not addressed the issue.

Carolyn’s attorney, Michael McKinney, disputes some of Megerle’s research.

Carolyn says Elmer does not understand what he is doing, and questions whether he even wants a divorce. She declined an interview request, but in court filings she described how her husband’s dementia makes him vulnerable to scams, saying he has “lost thousands of marital dollars.”

Through her attorney, she says Elmer is now subject to another scammer: his attorney, who is helping him get a divorce so he can spend money “without the oversight of Carolyn.”

“In such a scenario, the worst fears of Carolyn would be realized as Elmer is fleeced and drained by his enablers, and left out on the street when he has no longer has any ability to support himself,” her attorney wrote in court documents.

Elmer’s attorney points out that Elmer found and hired a lawyer, verified a divorce petition and drove himself to all of his legal appointments and court hearings without Carolyn’s help.

“A person can be deemed disabled but I believe that if they can show what their true feelings and intentions are, I don’t think that they should be locked up by their guardian,” Elmer’s attorney said.

McKinney said Carolyn wants to care for Elmer and that “Elmer is not a prisoner at all, having the freedom to come and go as he pleases and associate with anyone whom he chooses,” the only restriction being he does not have unfettered access to the family finances to “waste them on get-rich-quick schemes, scammers and predators who are always looking for unsuspecting people like Elmer.”

Elmer’s only income is the few hundred dollars a month he gets from Social Security. He said in an affidavit that he has an annuity through the Knights of Columbus for $24,000, but Carolyn does not allow him to draw from it.

Carolyn is a nurse who earns about $50,000 a year, according to court documents.

“My wife claims I am incompetent, disabled and unable to take care of my finances, yet she leaves me alone every day when she works, and then leaves for vacation and does not check on me,” Elmer said in the affidavit.

Some states, such as Pennsylvania, allow people declared mentally incompetent to seek a divorce, but only through a guardian. Tennessee allows the divorce if the court rules the incompetent person has given credible evidence of a desire to divorce.

If the court rules the divorce can go forward, it would not change Carolyn’s status as Elmer’s legal guardian, although Megerle said Elmer would likely ask the court to appoint a new guardian.

The issue of mentally competent divorce came before the state appeals court in 2010. A majority of the judges were sympathetic, but they ruled against the incompetent person, saying they could not overturn a legal precedent.

Only the state Supreme Court can do that.

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