Divorce Now Possible for Permanently Disabled via Guardianship

“Till death do us part” was never more true than the case of a permanently disabled individual who was subject to a guardianship. For those no longer able to care for their own affairs, a guardian can be appointed to handle all of their legal, financial, and healthcare-related issues. However, under prior Illinois law, this did not apply to the dissolution of marriage.

To put a face on the issue, take the case of Marcia Karbin and her husband, Jan Karbin. She suffered brain damage in a car accident in 1997. Her husband handled her affairs initially, but eventually the guardianship was transferred to her daughter, Kara Hibler, because his advancing Parkinson’s disease made caring for his wife difficult.

Eventually, Jan sought a divorce and Maria responded via her guardian. Through the discovery process, where assets are disclosed, it was discovered that Jan might have been living with another woman and hiding assets. In addition, Jan was listed as co-owner of a house with his "new wife" on a real estate deed, even though he was not legally married (due to his prior nuptials with Marcia). He later dismissed his petition for a divorce.

However, Kara was not dissuaded. She filed her own petition for a divorce on behalf of her mother, as Jan would stand to inherit Marcia's estate otherwise.

To summarize, Jan is married to the now-disabled Marcia. He dropped his divorce request because of allegedly hidden assets. Kara, on behalf of her mother, pushed for a divorce because Jan had moved on.

Unfortunately, current law prohibited a guardian from petitioning for divorce on behalf of the disabled. There's plenty of justification for this. For one, there is the "till death do us part" bit that was sworn to under Illinois law. Also, since one spouse is now unable to make decisions for herself, her true desires in regards to her marriage can be impossible to ascertain.

The law led to injustices, however. Not all who are subject to a guardianship are constantly and completely incapable of expressing their desires. Some, such as Alzheimer's patients, drift in-and-out of competence. Others have limited disabilities that affect their ability to handle finances and business, but can still express a desire for divorce.

Under the Illinois Supreme Court ruling in Marcia and Jan's case, guardians will now be able to petition for divorce. A judge will decide if there is clear and convincing evidence that it would be in the disabled person's best interests, based on that person's testimony and evidence presented by the guardian.

Clear and convincing can be summarized as "highly probable to be true." This is less than the criminal law standard of "beyond a reasonable doubt" and more than the "preponderance of the evidence" standard of civil cases, which is typically described as 50 percent plus one.

Related Resources: