When irreconcilable differences arise between a married couple, they have the option to seek a divorce. Even though many legal issues such as property division, asset distribution, child custody and visitation issues must be addressed, for most, seeking a divorce is a decision that one can independently make. However, an additional layer of complexity is added to such a decision when one spouse is mentally disabled or incompetent.

Residents in Michigan who know a loved one or a friend who is mentally disabled or incompetent may find a recent ruling in the neighboring state of Illinois interesting. The Illinois Supreme Court ruled on a case where the guardian, who happened to be the daughter, brought a divorce action on behalf of her mentally disabled mother. The lower courts ruled that the guardian/daughter did not have the authority to seek a divorce on behalf of her mother, as state law bars it. This ban prevented guardians of people with severe brain damage and even those who could make their wishes known from seeking a divorce on their behalf. The Illinois Supreme Court ruled that an outright ban was not appropriate for a vulnerable person could be left in the hands of a spouse who may be abusive or exploit them financially.

The Court stated in its ruling that a guardian can act in the best interest of its ward in all personal matters. If divorce is in the best interest of the ward, it may be filed by the guardian on their behalf and the court will determine if there is clear and convincing evidence that the divorce is in the best interest of the mentally disabled person. If the person is able to make his or her wishes known, the court will consider those wishes in making its determination.

Divorce is generally difficult for most people. If a guardian feels that a ward is being exploited or abused, the guardian should seek advice as to the steps to take in the best interest of the ward, which may include filing for divorce on behalf of the ward.

Source: The Chicago Tribune, “Cook County case opens door to divorce for mentally disabled,” Oct. 4, 2012