Can I divorce my spouse who is in a coma?

One of our search terms this week on Divorce Saloon was “can I divorce my spouse who has been in a coma for ten years?”
This is a very good question.
It would appear that divorcing a comatosed spouse can be tricky. At least in most U.S. states (not so sure about the international situation which will likely vary country to country) because in order to obtain a divorce, you have to prove that your spouse obtained – or was served – the divorce papers. You need an affidavit of service stating that your spouse was served the papers and the words ACTION FOR DIVORCE were clearly visible on the front (this is true in New York, at least). Obviously, a comatosed spouse cannot accept service of divorce papers. They are completely unable to understand that they are being served or that this is an action for divorce. This is not unlike a person with mental illnesses who simply does not have the capacity to accept service of divorce papers.
So where does that leave us? Well you have a few options. One is to request Judicial intervention and ask for permission to serve your spouse in some other way such as publication, as is the procedure when you have a “missing spouse.” Chances are, though, that the courts will appoint a legal guardian for your spouse and that guardian is whom you will serve the papers.
The guardian would then have the legal authority to contest the divorce or to assent to the divorce. The guardian would have the authority to haul you into court if there is money in your spouse’s estate that you want equitably distributed. sometimes, believe it or not, if your spouse is in a coma the guardian can commence the divorce action against you! This usually only happens when there are significant assets involved, however; it is typically the other scenario that you want to divorce your comatosed, mentally incapacitated spouse not the other way around.
If there are no assets involved, the divorce can usually proceed without drama and will remain uncontested. Contested divorces involving a comatosed party, however, can get very, very messy.