Posted on August 18, 2021

How Can A Mentally Disabled Person Get A Divorce In Illinois?

Slowly and surely our health and the health of our loved ones begins to fail. Unfortunately, these mental disabilities can be too much for loved ones to bear and a divorce becomes necessary as the disabled spouse receives their care from another relative or friend who is not the spouse.

Dementia, stroke or late onset mental illness can render a person unable to handle their affairs…even their marriage. But, can a mentally disabled person get divorced with or without the help of a guardian in Illinois?

“The test of the mental capacity required for filing a petition for dissolution of marriage is whether the petitioner has sufficient mental capacity to understand fully the meaning and effect of the petition and whether the petitioner is able to determine in his own interest that he desires a final separation.” In re Marriage of Kutchins, 510 NE 2d 1300 – Ill: Appellate Court, 2nd Dist. 1987

If someone is truly mentally disabled, they will not have the mental capacity to fully understand the meaning and effect of their petition for dissolution of marriage. A truly disabled person is not filing their own divorce in Illinois. The disabled person’s guardian is filing the divorce for them (after much frustration with the spouse).

The Illinois Supreme Court has dealt with this issue of a mentally disabled person’s guardian bringing a divorce action against their spouse. “We begin by noting that the issue before us is not novel. It has been addressed over the years by the courts of a number of jurisdictions. Research reveals a strong majority rule that, absent statutory authorization, a guardian cannot maintain an action, on behalf of a ward, for the dissolution of a ward’s marriage.” In re Marriage of Drews, 115 Ill.2d 201, 203-04, 104 Ill.Dec. 782, 503 N.E.2d 339 (1986) (Citations Ommited)

So, the answer used to be, no, a guardian cannot start a divorce on behalf of a disabled person in Illinois.

This is no longer the rule (I will explain the rule in a moment) but I bring it up to be clear that the courts are very hesitant to allow guardians to pursue divorces on behalf of their wards.

The spouse of divorced person can always file a motion for lack of standing because the spouse is NOT married to the guardian. The spouse is married to the disabled person and a disabled person is required to file and sign their own Petition For Dissolution Of Marriage.

“The complaint or petition for dissolution of marriage or legal separation shall be verified” 750 ILCS 5/403

“[A]ny complaint, petition, answer, reply, bill of particulars, answer to interrogatories, affidavit, return or proof of service, or other document or pleading filed in any court of this State is required or permitted to be verified, or made, sworn to or verified under oath” 735 ILCS 5/1-109(a)

Perhaps the most famous Supreme Court Justice, Justice Cardozo, said “Every human being of adult years and sound mind has a right to determine what shall be done with his own body” Schloendorff v. Society of New York Hospital (1914), 211 N.Y. 125, 129-30, 105 N.E. 92, 93. That includes getting divorced.

Mentally disabled people, by definition, cannot swear to allegations under oath as they are not “of sound mind and body.”

How Does A Guardian Get Appointed For A Disabled Litigant?

In theory, a guardianship needs to be established in probate court. In reality, a disabled adult in a divorce proceeding will be appointed a Guardian Ad Litem by the divorce judge.

There is no statute or rule that allows a Guardian Ad Litem to be appointed for an adult…but the Illinois Supreme Court found that a trial court does not need a statute or a rule when it finds a mentally disabled adult in its jurisdiction.

An Illinois divorce “court ha[s] authority to appoint a guardian ad litem in the absence of statutory authority.” In re Marriage of Tener, 2023 IL App (1st) 220890

A disabled person is “viewed as a favored person in the eyes of the law and is entitled to vigilant protection.” In re Mark W., 888 NE 2d 15 – Ill: Supreme Court 2008 (quotations omitted)

When a person is adjudicated mentally disabled, that person remains under the jurisdiction of the
court, and the court has “a duty to judicially interfere and protect the interests of the disabled person…To fulfill this duty, the court’s authority is not limited to express statutory terms.” In re Mark W., 888 NE 2d 15 – Ill: Supreme Court 2008

While a judge can appoint a guardian ad litem for an adult, that guardian ad litem has to determine if the allegedly mentally disabled person is truly mentally disabled.

“[A] trial court can[] appoint a guardian ad litem for an adult litigant not yet adjudged disabled, where the court has concerns about the mental capacity of the litigant and there is no objection to the appointment of a guardian ad litem….In no event should a trial court’s right to appoint a guardian ad litem be considered absolute and certainly a hearing should be had as to the actual competency of the adult litigant. Moreover, we believe that it is incumbent upon the guardian ad litem to ascertain the competency of the adult litigant and report to the court as soon as possible.” J.H. v. Ada S. McKinley Community Services, Inc., 369 Ill. App. 3d 803, 819 (Ill. App. Ct. 2006)

A Guardian Can Continue A Disabled Person’s Previously Filed Divorce

If the divorce was filed by the person before they became incapable of pursuing their divorce, a guardian can step in to the shoes of the disabled person and finish the divorce on the disabled person’s behalf.  

“If the ward filed a petition for dissolution of marriage under the Illinois Marriage and Dissolution of Marriage Act before the ward was adjudicated a person with a disability under this Article, the guardian of the ward’s person and estate may maintain that action for dissolution of marriage on behalf of the ward.” 755 ILCS 5/11a-17(a-5)

“Whereas [the previous Supreme Court case involved a guardian’s power to initiate dissolution of marriage proceedings on behalf of a ward, [the petitioner’s] case concerns a guardian’s authority to continue a ward’s dissolution of marriage action.”  In re Marriage of Burgess, 189 Ill.2d 270, 244 Ill.Dec. 379, 725 N.E.2d 1266 (2000)

A Guardian Can Initiate A Disabled Person’s Divorce In Illinois With Permission Of The Court

A guardian can only start a divorce on behalf of a disabled person if they ask the court for permission first.

“Upon petition by the guardian of the ward’s person or estate, the court may authorize and direct a guardian of the ward’s person or estate to file a petition for dissolution of marriage or to file a petition for legal separation or declaration of invalidity of marriage under the Illinois Marriage and Dissolution of Marriage Act on behalf of the ward if the court finds by clear and convincing evidence that the relief sought is in the ward’s best interests. In making its determination, the court shall consider the standards set forth in subsection (e) of this Section.” 755 ILCS 5/11a-17(a-5)

The guardian must convince the guardianship/probate court (a different court than the divorce court) that the divorce is in the disabled person’s best interests pursuant to the following statute:

“Decisions made by a guardian on behalf of a ward shall be made in accordance with the following standards for decision making. Decisions made by a guardian on behalf of a ward may be made by conforming as closely as possible to what the ward, if competent, would have done or intended under the circumstances, taking into account evidence that includes, but is not limited to, the ward’s personal, philosophical, religious and moral beliefs, and ethical values relative to the decision to be made by the guardian. Where possible, the guardian shall determine how the ward would have made a decision based on the ward’s previously expressed preferences, and make decisions in accordance with the preferences of the ward. If the ward’s wishes are unknown and remain unknown after reasonable efforts to discern them, the decision shall be made on the basis of the ward’s best interests as determined by the guardian. In determining the ward’s best interests, the guardian shall weigh the reason for and nature of the proposed action, the benefit or necessity of the action, the possible risks and other consequences of the proposed action, and any available alternatives and their risks, consequences and benefits, and shall take into account any other information, including the views of family and friends, that the guardian believes the ward would have considered if able to act for herself or himself.” 755 ILCS 5/11a-17(a-5)

The above requirement are going to require a big speech to the court about what the disabled person’s best interest’s require a divorce AND why the disabled person would have wanted the divorce considering the current circumstances.

“By requiring guardians to act in accordance with their wards’ desires in making personal decisions, subsection (e) contemplates that a guardian will have the authority to carry out the ward’s wishes, including those expressed by a ward who filed a petition for dissolution of marriage.” In re Marriage of Burgess, 725 NE 2d 1266 – Ill: Supreme Court 2000

If you are a guardian for a person who is disabled and needs a divorce, you have to take very specific steps.

If you are married to a disabled person, you cannot let their guardian ask for a divorce without good cause.

Being married to or being a guardian for a severely disabled person is not easy…you need help. Contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney to learn more about your next steps.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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