Mom, guardian change divorce law for spouses with mental disabilities p3

On Behalf of | Oct 19, 2012 | Uncategorized

Guardians have immense responsibilities and could have immense power over a person’s affairs. The law, however, does not favor handing complete control of one person’s life to another, so it includes safeguards. Court-appointed guardians, for example, must give the court a regular accounting of the ward’s financial health and overall well-being. Family members or third-parties can challenge guardianships based on abuse of power.

A guardian cannot merely substitute himself or herself for the ward in many cases, including, for example, divorce. However, the Illinois Supreme Court recently opened the door for a guardian to do just that, in a case involving a woman with brain damage, her husband and her daughter, who is also her guardian. We’ve been discussing this in our last couple of posts.

Husband and wife had been separated for a few years when the husband filed, then withdrew, a petition for divorce. He changed his mind during discovery, apparently, just as his daughter was learning that he and another woman were living in a house they’d purchased as “husband and wife.” Other financial irregularities led the daughter to determine that divorce was, in fact, a good idea.

Following some legal wrangling with her father, the daughter/guardian learned from the court that the probate code did not contemplate a guardian being allowed to file for divorce on behalf of a ward. The court and the appellate court followed existing case law that said the controlling statutes had not specifically granted the permission sought. The courts were looking for “explicit authorization” and found none.

The Supreme Court, however, did, thanks to a number of cases decided after the case that gave us the “explicit authorization” rule.

We’ll finish this up in our next post.


Pantagraph (Bloomington, IL), “Court opens door to divorce for mentally disabled,” Associated Press, Oct. 4, 2012

Karbin v. Karbin ex rel. Hibler, 2012 IL 112815, 2012 WL 4712030 (Illinois, 2012), Oct. 4, 2012

Our firm works with people, similar to the husband and wife in this post, who want to dissolve their marriages but who face opposition from their spouses. If you would like to learn more about our Libertyville, Illinois, family law practice, please visit the divorce page of our website.


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