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Guardian may not file for divorce on behalf on incapacitated adult

July 3, 2013

Citing a 1951 Indiana Supreme Court case, the Court of Appeals has affirmed that the law does not allow a guardian of an incapacitated person to file a petition for divorce on behalf of the incapacitated person.

Harry and Virginia Tillman were married in 1998. A prenuptial agreement stated the husband would provide for his wife during their marriage “reasonable support, care and maintenance.” The two are now both considered incapacitated and Harry Tillman’s daughter, as his guardian, filed a petition for divorce on behalf of her father. He was living in a nursing home and she argued he needed his money to pay for his care. Virginia Tillman’s guardian filed a petition to enforce provisions of the prenup, and later filed a motion to dismiss the petition for divorce. The trial court granted the wife’s motion based on Quear v. Madison Circuit Court, 99 N.E.2d 254 (Ind. 1951).

In Quear, the justices held that an insane person can’t bring an action for divorce because he or she can’t consent to the filing of the complaint. It also held the statutes on divorce and guardianship do not allow for a guardian to file the petition for dissolution.

“Neither the current Indiana statutes governing dissolution of marriage nor governing the guardianship of incapacitated persons provide a means for the guardian of an incapacitated person to file a petition for dissolution of marriage on behalf of the incapacitated person,” Judge Paul Mathias wrote in In Re the Marriage of: Harry L. Tillman v. R. Virginia Tillman, 87A05-1212-DR-619.

“Some might argue that the intervening decades of higher and higher divorce rates and the creation of federal and state programs to assist the elderly have radically changed civil society’s notions concerning what the vows of ‘for better and for worse’ mean. Therefore, for some, this might seem an appropriate time to revisit Quear,” he continued. “But Quear relied on the public policy pronouncements of the General Assembly within Indiana’s divorce and guardianship statutes, and those statutes have not changed appreciably regarding the issue before us since Quear.”

 

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