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Comment, GUARDIAN-INITIATED DIVORCES: a SURVEY Introduction \\jciprod01\productn\M\MAT\29-1\MAT108.txt unknown Seq: 1 17-NOV-16 10:47 Vol. 29, 2016 Guardian-initiated Divorces: A Survey 171 Comment, GUARDIAN-INITIATED DIVORCES: A SURVEY Introduction Can a legal guardian initiate divorce proceedings on behalf of her ward? This is a question to which many elder law and fam- ily law practitioners should know the answer.1 As medical sci- ence continues to advance, the average American lifespan continues to grow.2 This boon of longevity inevitably highlights legal issues to the forefront of the family law field. With this in- flux of newly-minted seniors, society must be able to discuss the needs of the guardian/ward relationship because “[t]he need for guardians and other surrogate decision-makers will grow as the population ages, and as the prevalence of Alzheimer’s Disease and the number of individuals with mental disabilities increases.”3 When a guardian is granted charge of a ward, an extremely personal and powerful relationship is formed. Depending on the needs and capabilities of the ward, the guardian may be in charge of his or her finances, living conditions, or even marital state. The status of marriage has historically been a very personal issue. In many of the religious vows still heard in chapels today, many hear the repeated the words of Christ, “What therefore God hath joined together, let not man put asunder.”4 However, putting the marriage asunder may be exactly what is in the best interests of some wards. Where there is elder abuse, infidelity, or financial ruin, the question arises whether a guardian can step in and initi- ate a divorce on behalf of a ward. The legal community must 1 The author, by this article, intends to give attorneys in each state rele- vant caselaw concerning this issue. However, he makes no assertions that the research of any particular state has been exhausted in its entirety. 2 CDC National Health Report: Leading Causes of Morbidity and Mor- tality and Associated Behavioral Risk and Protective Factors—United States, 2005–2013, Centers for Disease Control & Prevention (Oct. 31, 2014), http:// www.cdc.gov/mmwr/preview/mmwrhtml/su6304a2.htm 3 Erica Woods, The Paradox of Adult Guardianship: A Solution to—and a Source for—Elder Abuse, 36 GENERATIONS 79 (Fall 2012). 4 Mark 10: 9 (King James Version). \\jciprod01\productn\M\MAT\29-1\MAT108.txt unknown Seq: 2 17-NOV-16 10:47 172 Journal of the American Academy of Matrimonial Lawyers answer this question since it is sure to become increasingly rele- vant to an aging generation in need of assistance and protection. I. Common Approaches to the Issue It should be obvious to the thoughtful observer why guard- ian-initiated divorces have been met with inconsistent treatment among the states. Marriage itself is a weighty issue about which people feel strongly. Divorce, historically, has been such a divi- sive concept that whole religions and nations have been caught in its wake.5 Whether divorce was providence of the courts or the church, or whether fault must be shown, provisions regarding re- marriage have been fiercely debated throughout history.6 It is no wonder then that the debate over handing this power to another person has been slow to happen and fraught with disagreements. As a thought experiment, consider what would be the great- est argument for a guardian to initiate a divorce in the case of a ward abused by a marital partner. Most rational and caring peo- ple would rally behind a guardian who is saving the ward from a cruel and abusive spouse. However, given the staggering and horrifying prevalence of intimate partner violence,7 some spouses still choose to stay married in the face of abuse from their spouse. This may be religiously or culturally motivated, and underpinned by beliefs that spouses may hold dearer then their personal safety. While one may find abuse morally repugnant, a finding of abuse does not automatically or categorially nullify a marriage. Divorce is completely dependent on the will and wish of either partner in a married couple. While society may right- fully desire to legally and permanently separate all victims from their abusers, the law and the very concept of freedom prevent imposing that choice. This line of reasoning has held sway for quite some time in what represents a majority rule among the states, that divorce is simply too personal a decision and absent 5 Judith Areen, Uncovering the Reformation Roots of American Marriage and Divorce Law, 26 YALE J.L. & FEMINISM 29, 32 (2014). 6 Id. 7 World Health Organization, 16 Days of Activism Against Gender Vio- lence (2016), http://www.who.int/violence_injury_prevention/violence/global_ campaign/16_days/en (Seventy percent of women experience physical and/or sexual violence by an intimate partner at some point in their lives). \\jciprod01\productn\M\MAT\29-1\MAT108.txt unknown Seq: 3 17-NOV-16 10:47 Vol. 29, 2016 Guardian-initiated Divorces: A Survey 173 the expressed desire from one of the spouses, it should not be required.8 However, as American society’s attitudes towards divorce drastically changed in the 1960’s and 70’s,9 the law has seen the emergence of a new and slowly spreading minority rule: In the past 20 years, the convergence of three trends has led an in- creasing number of courts to reconsider the majority rule barring guardian-initiated divorces: 1) the liberalization of divorce statutes and the commonality of divorce in our society; 2) the expansion of guardian powers to include immensely personal decisions such as the refusal of medical care; and 3) an increasing societal focus on elder abuse and prevention. Based on these trends, a growing number of courts are now rejecting the majority rule.10 Several legislatures, such as Colorado, Florida, Missouri, Wiscon- sin, and most recently Illinois, have made this change from the norm by simply passing statutes which explicitly empower the guardian to initiate a divorce. Other states have addressed the issue by an examination of the already existing probate statutes, which typically grant broad authority to guardians. II. State by State Analysis of Guardian-Initiated Divorces This section will provide a state-by-state analysis of ap- proaches to guardian-initiated marital dissolutions. It should be noted that states omitted from this list lacked on point caselaw and most likely follow the majority rule.11 In some jurisdictions, the prevailing caselaw following the majority rule is rather aged, which might suggest the possibility of a challenge given the gath- ering momentum of the minority approach. 8 Bella Feinstein, A New Solution to an Age-Old Problem: Statutory Au- thorization for Guardian-Initiated Divorces, 10 NAELA J. 203, 209 (Fall 2014). 9 Arland Thornton, Changing Attitudes Toward Family Issues in the United States, 51 J. MARRIAGE & FAM. 873, 888 (1989). 10 Feinstein, supra note 8, at 211. 11 Diane Snow Mills, Comment, “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. MATRIM. LAW . 527, 536 (2000). \\jciprod01\productn\M\MAT\29-1\MAT108.txt unknown Seq: 4 17-NOV-16 10:47 174 Journal of the American Academy of Matrimonial Lawyers Alabama The question was directly addressed in Campbell v. Camp- bell, where the Alabama Supreme Court held that courts lack proper jurisdiction to award dissolution in a action brought by a guardian.12 The court reexamined this issue in Hopson v. Hop- son a little over a decade later and came to the same conclusion.13 Arizona Arizona provides the legal field with one of the best written and analyzed opinions in Ruvalcaba v. Ruvalcaba.14 Ruvalcaba offers some compelling language that could be useful in bringing the minority rule to a majority state: To deny incapacitated spouses the means to withdraw from abusive, or merely extinguished marriages, by leaving them captive to the repre- sentations of their competent spouses is, at best, to deprive them of their dignity and, at worst, to potentially condemn them to exploita- tion, physical injury and, possibly even death at the hands of the com- petent spouse. This is a result that a system of justice should not and cannot sanction.15 This case is a landmark because it was an early adopter of the minority rule and its language and clarity has made it an often- referenced opinion by other courts. Arkansas While not addressing the issue directly, in Sutherland v. Sutherland, the court mentions, in passing, that due to a mental handicap, a guardian filed a divorce on behalf of Mr. Suther- land.16 While dicta, and thus not controlling, this case’s mention 12 5 So. 2d 401, 401-02 (Ala. 1941) (this line of authorities holds that a decree of divorce procured on a bill filed by the next friend or guardian in the name of the lunatic is void for want of jurisdiction in the court to grant it.”). 13 57 So. 2d 505, 505 (Ala.1952) (“The exact question was passed on by this court in the case of Campbell v. Campbell, 242 Ala. 141, 5 So.2d 401. Upon a careful consideration we are not willing to depart from the holding of that case.”). 14 850 P.2d 674, 683-84 (Ariz. Ct. App. 1993). 15 Id. 16 383 S.W.2d 663, 663 (Ark. 1964) (“In June 1962 John D. Sutherland, by his guardian, N. W. Sutherland, filed suit for divorce”). \\jciprod01\productn\M\MAT\29-1\MAT108.txt unknown Seq: 5 17-NOV-16 10:47 Vol.
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