Can a Person File for Divorce on Behalf of Another in Illinois?

Imagine this scenario: In 2004, your elderly father, Howard, decided to marry for a fourth time. He married a then-22 year old woman named Anna. In 2014, after ten years of marriage, Howard decides he has had enough of Anna’s hard-partying ways and files for divorce. He also thinks she may have married him just for his money. Despite being a billionaire, Howard decides to represent himself in the divorce. While the case is pending, Howard suffers from a debilitating brain aneurism that has affected his ability to speak, communicate, to get out of bed, and needless to say, to act as his own attorney or make decisions on his behalf. You are named as his power of attorney and decide to seek guardianship over him as a “disabled adult” to make decisions on his behalf. As his guardian, are you then able to continue with the divorce proceedings on his behalf? Can you obtain an attorney to represent you as the guardian taking the place of Howard? The answer is, at least ever since 2012, a clear “yes” and here’s why.


Before 2012, Illinois case law was clear that a third-party individual could not file for divorce on behalf of someone else in any circumstance, nor could that party continue divorce litigation for that person. In the 1986 case of Marriage of Drews, the Illinois Supreme Court held that a guardian did not have standing to file a divorce proceeding on behalf of the ward.  In Drews, the husband was injured so severely that he was permanently mentally and physically disabled. After the accident, his mother was appointed as guardian of his estate and person. In that capacity, the mother filed for divorce on behalf of the husband. The Court held that absent specific statutory authorization, a guardian cannot institute an action for the dissolution of the ward’s marriage on behalf of the ward. It supported this conclusion by stating that the Probate Act, which did allow a guardian to represent the ward in legal proceedings, limited this ability to matters related only to the estate, rather than the ward’s person.

In 2000, an Illinois Supreme Court expanded on this ruling in the case of Marriage of Burgess. In Burgess, the husband filed for divorce. The following year, the husband was declared disabled and his sister was appointed as his guardian. The wife then filed a motion to dismiss the divorce case, arguing that her husband’s sister did not have authority to continue the litigation. The court decided that a disabled adult’s plenary guardian (a guardian of both his estate and his person) could continue a dissolution of marriage action originally filed by the now-disabled adult, prior to his disability and the appointment of a guardian. This opened a window for guardians of disabled people to at least continue pending litigation on behalf of the ward after they were appointed as guardians. The Burgess court expanded the guardian’s authority , stating that a guardian has implied authority to make very personal decisions on behalf of the ward, including authority to continue a divorce proceeding.


This trend in allowing a guardian more decision-making authority was solidified in 2012, when the Illinois Supreme Court decided the case Karbin v. Karbin. In Karbin, the wife became disabled after a car accident.  After several years, her adult daughter was appointed as her guardian.  The husband filed for divorce, and the guardian, acting on behalf of the wife, filed a counter-petition for dissolution of marriage.  After having second thoughts, the husband voluntarily dismissed his petition. He also sought to have the wife’s counter petition dismissed, relying on Drews.  While the trial court initially dismissed the case based upon the Drews holding, the Supreme Court ultimately overruled Drews.   The Court decided that a guardian did have the authority not only to continue divorce proceedings for the ward, but also to file a divorce petition on behalf of the ward if such petition is found to be in the ward’s best interest. The burden of proving that the action is in the ward’s best interest is “clear and convincing,” which is a high standard, due to the personal nature of the divorce litigation.


Since 2012 then, a guardian can initiate a new divorce proceeding on behalf of the ward if he or she can prove by clear and convincing evidence that the divorce is in the ward’s best interest. A guardian can also continue divorce litigation on behalf of the ward.


If you find yourself in a similar situation, you may be able to file for divorce or continue divorce proceedings if you take the appropriate steps. Contact us for more information.

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