An Illinois case rules divorce a guardianship right
In 1997, Marcia Karbin suffered brain damage and became seriously disabled after a car accident. Her husband, Jan was appointed plenary guardian of Marcia’s person and estate and for the next seven years he provided for her needs in their home. In 2004, Jan transferred his plenary guardianship of Marcia to Marcia’s daughter, Kara due to his own medical issues. At the time of the transfer, the probate court approved a settlement agreement signed by both parties. In 2007, after living apart for nearly three years, Jan petitioned the court for dissolution of his marriage alleging non-cohabitation and irreconcilable differences. In 2008, Marcia, through Kara filed a counter petition alleging the same basis. Jan sought dismissal of Marcia’s petition asserting that Kara did not have the authority to file the petition. The probate court agreed as did the judge and Marcia appealed. The Illinois Supreme Court overruled citing a 1986 case (Drews) which held that a plenary guardian lacked standing to institute dissolution of marriage proceedings on behalf of a ward. Jan argued that a guardian could not be sure that a divorce conformed to the disabled spouse’s true wishes.
The court found that Illinois’ recognition of no-fault divorce placed it amongst those jurisdictions which, while acknowledging the state’s interest in the stability of marriage eliminated the concept of divorce as a remedy to the innocent spouse and as a result found no reason to deny a guardian the right to make personal decisions that were in the ward’s best interest including the decision to seek divorce.