Can a Guardian File for Divorce on Behalf of a Ward in Illinois?

Guardianship and Divorce in Illinois: Can a Guardian File For Divorce on Behalf of a Ward?

64967868
Video by Attorney Kevin O'Flaherty
Article written by Illinois Attorney Kevin O'Flaherty
Published on
July 11, 2019

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? 

For some foundational information on guardianship, check out our article: Illinois Guardianship Explained. To learn more about our divorce, check out: The Illinois Divorce Process Explained.

Can a Guardian File for Divorce on Behalf of a Ward in Illinois?


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.  

What is the Process for a Guardian File For Divorce on Behalf of a Ward in Illinois?

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. 

Can a Guardian Seek Annulment of the Ward’s Marriage Based on Disability?

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. 


Contact us for an appoinment

Additional Financial Considerations
from Financial Experts

From Financial Experts

For many years, financial institutions have been creating a disservice to clients and the industry as a whole for years.
View More Professional Considerations

Presented By O'Flaherty Law

O'Flaherty Law is happy to meet with you by phone or at our offices in Downers Grove, Elmhurst, Naperville, St. Charles, Lake in the Hills and Tinley Park, Illinois.

What to Expect From a Consultation

The purpose of a free consultation is to determine whether our firm is a good fit for your legal needs. Although we often discuss expected results and costs, our attorneys do not give legal advice unless and until you choose to retain us. Although most consultations are complimentary, some may carry a charge depending on the type of matter and meeting location.

Leave a Comment With Your Questions

Read more about

Adult Guardianships

Can a Guardian File for Divorce on Behalf of a Ward in Illinois?
Disclaimer: Our articles and comment responses do not constitute legal advice and are not intended to create an attorney-client relationship.

Please contact us to schedule a free consultation for legal advice specific to your situation.

Can a Guardian Seek Annulment of the Ward’s Marriage Based on Disability?guardian law in illinois and divorcedivorce law in illinoisguardianship and divorceguardian filing divorce on behalf of wardguardianship law in Illinoisguardianship law in IllinoisWhat is the Process for a Guardian File For Divorce on Behalf of a Ward in Illinois?
Listen on Google Play Music

Subscribe to our mailing list

* indicates required
Here are some articles that may interest you

Categories