In this article we explain guardianship and divorce in Illinois and answer the questions can a guardian file for divorce on behalf of a ward in Illinois?, what is the process for a guardian to file for divorce on behalf of a disabled adult in Illinois?, and can a guardian seek annulment of a ward’s marriage based on disability?
Guardianship in Illinois may be plenary or limited. A plenary guardian has general authority to make decisions on behalf of a disabled adult. A limited guardian can make only the specific types of decisions explicitly set forth in the court order instituting the guardianship.
In Illinois, plenary guardians have the power to initiate divorce proceedings on behalf of a ward as well as the power to continue to move forward on divorce actions that were initiated prior to the institution of the guardianship.
When initiating a divorce on behalf of the ward, the guardian must follow the substituted judgment rule. This means that the guardian must attempt to make the same decision that the ward would have made were the ward mentally competent to do so. This takes into account the ward’s personal religious and ethical beliefs. According to the substituted judgment rule, the decision that the ward would have made may override the decision that the guardian believes to be in the ward’s best interest.
A guardian cannot simply file a divorce petition on behalf of a disabled adult on his or her own initiative. Rather the guardian must petition the probate court with jurisdiction over the guardianship case in order to seek permission to initiate marital dissolution. The guardian seeking to initiate divorce proceedings must demonstrate by clear and convincing evidence that the divorce is in the best interest of the disabled adult.
If the probate court grants the guardian permission to file for divorce on behalf of the ward, the guardian may then institute divorce proceedings by filing a divorce petition.
A guardian can file to annul a ward’s marriage based on lack of mental capacity to marry at the time of the marriage. The petition to annul the marriage must be filed within 90 days of the guardian learning of the disabled adult’s incapacity to consent to marriage.
An individual does not have the mental capacity to consent to marriage if he or she is unable to understand the nature, effect, duties and obligations of the marriage. It is possible for an individual to be judged to be disabled for the purpose of guardianship while still having the ability to consent to marriage.