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Judiciary committee to consider guardians being able to file for divorce

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Tackling an issue that has appeared in the Court of Appeals twice in recent months, the Senate Judiciary Committee will hear legislation that would allow guardians to file for divorce on behalf incapacitated adults.

Senate Bill 59 is one of eight bills on the committee’s agenda Wednesday. Under the proposed bill, a court would be able to grant a guardian’s request for permission to file for divorce only if the guardian proves by a preponderance of the evidence that the dissolution is in the best interest of the protected person.

The guardian must be named in a petition for dissolution of marriage and must file with that petition a copy of the court order granting the request for permission to file the petition.

Indiana law does not currently allow a guardian to petition for dissolution of marriage on a ward’s behalf. The Indiana Court of Appeals issued opinions in October and July on this topic, in one case reversing the grant of a divorce filed by an incapacitated man’s daughters, who are his co-guardians.

The appellate judges cited caselaw from 1951 to support their rulings and also pointed out that the current laws governing dissolution of marriage and guardianship of incapacitated persons do not provide a means for a guardian to file for divorce on behalf of his or her ward. Court of Appeals Judge Paul Mathias wrote in In Re the Marriage of Leora McGee v. Robert McGee, 45A04-1301-DR-33, “In a world full of subsequent marriages and available pre-nuptial agreements, we will not read into a statute such a sweeping and potentially overreaching authority, authority that is not the clearly expressed intent of the General Assembly.”

The committee meets at 9 a.m. in Room 130 at the Statehouse. Also being heard Wednesday:

•    SB 41 provides that property sold at auction in a partition sale shall be sold without relief from valuation or appraisement laws.
•    SB 138, on victim advocates in civil proceedings, removes restrictions on grants from the victim services division of the Indiana Criminal Justice Institute for certain entities to enter into a contract with the domestic violence prevention and treatment council. The bill also provides that a court may allow a victim advocate to attend a civil proceeding and confer with a victim as necessary. A victim advocate is not considered to be practicing law when performing certain services.
•    SB 227 expands immunity from arrest or prosecution for certain alcohol offenses if the arrest or prosecution is due to the person reporting a medical emergency, being the victim of a sex crime, or witnessing and reporting a crime. Current law provides immunity only if the person reports a medical emergency that is due to alcohol consumption.
•    SB 229 on firearm buyback programs
•    SB 305 on Schedule I drugs and “spice”
•    SB 291 on human trafficking investigations
•    SB 312, on the assignment of lottery prizes, allows a person who wins a prize payable in installments from the lottery commission to assign the future prize payments under certain circumstances upon court approval.


 

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  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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