- Associated Press - Thursday, December 15, 2016

FRANKFORT, Ky. (AP) - The Kentucky Supreme Court says the only way a mentally incompetent 88-year-old man can seek a divorce is if his guardian files for it on his behalf.

The trouble is, Elmer Riehle’s legal guardian is his wife, and she does not want a divorce.

It’s a “peculiar conundrum” that likely can only be settled by the state legislature, the court said, ruling that Kentucky law does not allow “persons of unsound mind” to file legal actions.

In 2008, Carolyn Riehle persuaded a jury to declare her husband mentally incompetent after he sent thousands of dollars to someone he believed to be “a Nigerian royal prince.” Elmer Riehle has unsuccessfully fought that ruling, and in 2013 he filed for divorce.

But Kentucky is one of 10 states that prohibit mentally incompetent people from seeking a divorce. Twenty-six states allow for some exceptions, while 14 states have not addressed the issue.

“The disabled person is stuck until death do they part in the commonwealth,” said Elmer Riehle’s attorney, Steven Megerle. “It is important that a disabled person such as Elmer, if they are being abused or abandoned, should have the ability to be divorced and get a new guardian.”

Lawyers for both sides said there was no evidence of abuse or exploitation in the Riehles’ relationship, but other cases have been more troublesome.

In 2011, the state Court of Appeals denied the request of a woman with Alzheimer’s to divorce her husband, who had been accused by state officials of using her illness to take advantage of her finances. The lower court urged the Supreme Court to overrule its 1943 Johnson v. Johnson decision, which the law is based on.

Megerle also argued for overturning the precedent, and while the majority declined to review the case on Thursday, three of the seven justices said they would be willing to overturn the 1943 decision and allow mentally incompetent people to seek a divorce.

Justice Samuel T. Wright argued the courts should “in the least, appoint a limited guardian for the divorce action (as his current guardian’s interests conflict with his own insofar as the divorce).”

Carolyn Riehle’s attorney, Michael McKinney, disagreed: “There may be cases out there that need to have changes in the law, but this certainly wasn’t that case.”

Megerle said he has not spoken with Elmer Riehle about the ruling. He said his health has declined, making communication difficult.

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