Door Opened for Mentally Disabled Seeking Divorce in Illinois

 Posted on October 24, 2012 in Family Law

Ruling in a case brought in Cook County, the Illinois Supreme Court opened the door Thursday to divorce for people who need guardians because of mental disabilities.

For years, Illinois has barred guardians from seeking a divorce on behalf of the mentally disabled people under their protection. That meant the disabled person could not get a divorce unless his or her spouse started the process.

The ban affected people with severe brain damage, but it also covered those who could make their wishes known — people with Alzheimer's, for instance, or with a mental illness whose effects come and go, according to the advocacy group Equip for Equality.

The ruling said an outright ban is no longer appropriate. It could leave vulnerable people “at the complete mercy” of spouses who abuse them or exploit them financially, Justice Charles Freeman wrote for the unanimous court.

“Either the guardian can act in the best interests of the ward for all personal matters, or for none at all,” Freeman said.

John Whitcomb, senior attorney for the group, said guardians will now be able to file for divorce and then a judge will decide if there is clear and convincing evidence that it would be in the disabled person's best interests.

In some cases, that will mean weighing the evidence without any help from the person directly affected. But in others, the people with disabilities will be able to speak for themselves.

“There are people who can clearly articulate their desires and can tell the court but have a guardian to actually initiate it,” Whitcomb said.

The ruling involves a Cook County couple, Jan and Marcia Karbin. Marcia suffered brain damage in a 1997 car accident. Eventually, Marcia's daughter was named her guardian.

After financial disputes with the husband, Marcia's guardian wound up seeking a divorce for her mother. The divorce court and an appeals court said she didn't have authority to do that.

For more information on Family law and Divorce in the DuPage County area or within Illinois, contact Martoccio & Martoccio at 630-920-8855 or visit their website at www.hinsdalelawyers.com.