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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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