Friday, March 15, 2013

Supreme Court Reverses Ban on Right of Guardian to File for Divorce

Supreme Court Reverses a 26 year Rule on the Right of a Guardian to File for Divorce on Behalf of a Ward
In October of last year the Illinois Supreme Court reversed a 26 year old rule that guardians of an adult under a disability could not file for divorce by reversing In re Marriage of Drews, 503 N.E.2d 339 (1986)
In that case the Court said that a guardian had no ability to file a divorce on behalf of a ward. That case was hotly contested even at the time when one of the dissenting justices complained that if starting a divorce “can be shown to be beneficial to the maintenance and welfare of the ward, the court ought to allow it.”

It took a long time for that dissent to be a basis to change the law. But it did when the Supreme Court revisited the right of a guardian to initiate a divorce case on behalf of a ward. Karbin v. Karbin, 2012 IL 12815 (Ill. 2012). The Justices summed it up when they stated: “This ensures that the most vulnerable members of our society are afforded fundamental fairness, equal protection of the laws and equal access to the courts. Therefore, In re Marriage of Drews is hereby overruled.”

Divorces are always traumatic and difficult even under the best of circumstances. When one of the parties is under a disability, it is even more so. At least now the court can make sure that there are protections for the disadvantaged spouse who may be under a disability. Sometimes only a court can ensure that an able spouse takes care of the needs of a disabled spouse and a divorce may be the best method to achieve that.