Tuesday, November 18, 2008

Divorce Actions by Guardians of Incompetents

The Dallas Morning News reported yesterday a case in which a son is seeking a guardianship for his 87-year-old father and to bring a divorce action on his behalf.  The news report provides plenty of details on the facts of the case and would make a fine case study of divorce dynamics on its own, but it is especially useful for calling student attention to the increasing intersections of elder law and divorce law. 

For a summary of the specific legal issues raised by this case, see the comment by UMKC Law Student Diane Snow Mills, "But I Love What's-His-Name": Inherent Dangers in the Changing Role of the Guardian in Divorce Actions on Behalf of Incompetents, 16 J. Am. Acad. Matrimonial Law. 527 (2000).  That article reviews the state laws on the issue and notes that, at the time of the article, only eight states had statutes or rules which specifically provided for divorce actions brought by the guardian of an incompetent ward.   In the remainder of the states, "the overwhelming majority of jurisdictions with no express statutory authority had held that the decision of whether or not to bring a dissolution action was such a highly personal one and could not be made by anyone other than the aggrieved spouse."  The article does note  a minority trend in the states to increasingly allow these actions and reviews the legal issues. 

Recent cases on the subject have reflected this increasing willingness to allow these actions.  In August of this year, the Ohio Court of Appeals held that a guardian could bring a divorce action on behalf of an incompetent ward.  The court distinguished prior precedent that had prohibited such actions on the basis that those cases predated the adoption of the current Ohio Rules of Civil Procedure, which allow guardians "to sue or defend" on behalf of a ward.  Broach v. Broach, 177 Ohio App.3d 664, 2008-Ohio-4132. (opinion online)   Likewise, last month the New Hampshire Supreme Court issued a decision in a case raising a related issue: whether a guardian could continue an action for divorce that a husband had brought before he became incapacitated by stroke.  While the court noted that the majority rule continues to be that guardians may not initiate divorces on behalf of their incompetent wards, the case before it was exceptional in that the intent of the ward was clear given his action of bringing the divorce petition before he had become incapacitated.  In the Matter of John Salesky and Jacqueline Salesky, New Hampshire Supreme Court, October 8, 2008 (opinion online)(last visited November 18, 2008 bgf).

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