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Guardian may not file for divorce on behalf on incapacitated adult

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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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  1. OK, now do something about this preverted anacronism

  2. William Hartley prosecutor of Wabash county constantly violates people rights. Withholds statement's, is bias towards certain people. His actions have ruined lives and families. In this county you question him or go out of town for a lawyer,he finds a way to make things worse for you. Unfair,biased and crooked.

  3. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

  4. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  5. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

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