Does a Guardian Have the Power to File a Divorce Petition? In Some States, Yes

The issue arises with some regularity. A married couple, perhaps in their second marriage. Adult children. One spouse becomes ill — often, but not always, demented. The other spouse, unable to cope, turns the care of the ill spouse over to one of the children. That child figures out that, financially, at least, the ill spouse would be better off divorced. That way, control of the ill spouse’s share of the couple’s property could be managed for the sole benefit of the ill spouse, and care could be assured. But can the guardian file a divorce petition?

In most states, the answer is not clear. A handful of states have explicitly addressed the question, with mixed results. The latest state court to face the issue is the Supreme Court of Vermont.

Catherine and Philip Samis had been married for almost a quarter century when Mrs. Samis began to show signs of dementia. Mr. Samis, a Canadian citizen, withdrew across the border to one of the couple’s homes, taking most of their personal effects with him. Mrs. Samis’ son from a former marriage stepped in, secured a guardianship of his mother’s person and estate (in Arizona we would call it a guardianship and conservatorship), and began overseeing her care.

Mrs. Samis is a U.S. citizen, and would be entitled to Social Security benefits under her first (now deceased) husband’s account if she were not married. Since Mr. Samis is a Canadian citizen, there are no Social Security benefits payable to her while she remains married. Her son decided it would be in her best interest — financially, at least — to get divorced, and to divide the couple’s property so that he could control how her share was spent.

Once a divorce proceeding was filed, however, Mr. Samis objected. He argued that Vermont law did not permit a guardian to petition for divorce on behalf of a ward. As with most states, the Vermont statutes were silent on the subject; there was a single reference in Vermont court rules to guardians signing divorce petitions, but no indication how the Vermont legislature felt about the possibility.

After the divorce court denied Mr. Samis’ objection, granted the divorce, divided the couple’s property and ordered Mr. Samis to make a lump-sum support payment of about $300,000, he appealed. The Vermont Supreme Court was thus faced with determining whether Mrs. Samis’ guardian had the authority to initiate the proceeding in the first place.

Ruling that a guardian’s powers are limited to those spelled out in the guardianship statutes, the state’s high court reversed the divorce court’s orders. The justices considered the holdings in a handful of states, including Arizona, and concluded that most do not permit guardians to file divorces.

The ability to file for divorce is intensely personal, said the justices. The only Vermont precedent that addressed the issue at all, an 1877 Supreme Court case, agreed; in that case, a person who had been placed under a guardianship of the estate (what would be a conservatorship in Arizona) was permitted to file his own divorce proceeding despite the guardianship. Now it is clear that in Vermont, at least, the guardian can not file the divorce petition for a ward who has become incompetent.

What about the other states? The Vermont decision cites several that agree with its holding, including appellate courts in Kentucky, New York and South Carolina. Courts in Massachusetts and New Hampshire have allowed guardians to petition for divorce, but have done so based on specific state statutes. According to the Vermont justices, only two states, Arizona and Washington, have permitted guardians to file for divorce even without the support of statutes clearly authorizing the action. Samis v. Samis, February 18, 2011.

As the Vermont Supreme Court notes, Arizona is one of the minority of states clearly permitting the guardian to file a divorce proceeding, even without express statutory authority. That is the holding of the Arizona Court of Appeals in the 1993 case of Ruvalcaba by Stubblefield v. Ruvalcaba, which we reported on at the time (yes, Virginia, there was an Elder Law Issues in 1993/1994), and which we have since described in more detail for our readers.

11 thoughts on “Does a Guardian Have the Power to File a Divorce Petition? In Some States, Yes”

  1. There has been in Re-argument filed with the Vt Supreme Court regarding this ruling. Not only does this ruling strip anyone in Vermont under guardianship of equal rights under the law (14 ammendment) but it leaves Mrs Samis with out any source of income. Altho’ the Vt Supreme Ct was also appealed in this case in 2007 (which you will read in their Feb 18th ruling) however they denied the appeal at that time – allowing the case to go another another 4 years before revisiting this issue of law and changing their minds. The Samis’s were divorced in May of 2009. Ms Samis is now on Medicaid as her husband had refused to pay any support ordered by the court in the settlement agreement. After abandoning his wife only 4 months after her diagnosis with Alzheimer’s disease, the wife’s family has not been able to effect enforcement of the Vt Family courts settlement as Mr Samis moved to Toronto and enforcememnt over the border is a very lengthy process. This ruling not only strips her of her rights – she will be dropped from Medicaid as she is now remarried and her husband has assets (even though he has refused to pay any spousal support whether married or divorced. Further, Vermont has also allowed guardians to file for divorce and has granted these in recent past. These cases are part of the Re-argument in front of the Vt Supreme Ct, will these couple be “remarried” after years of divorce as well? A spouse can now beat his partner senseless in Vt and never worry about being divorced or not having the spouses assets at their disposal? So much for Vt being a progressive state!

  2. Pingback: Despite Guardianship, Ward May Have Capacity to Marry | Elder Law Issues — Fleming & Curti, PLC

  3. denise edwards

    In regards to the guardianship in the state of AZ, can one be married under guardanship?

  4. Denise:
    It is impossible to answer your question (about marriage for a person under guardianship in Arizona) with a simple “yes” or “no”. If you have such a situation you should consult with an Arizona attorney with experience in the area. The answer will be very fact-dependent, and the law is not well developed.
    You might look at our newsletter article Despite Guardianship, Ward May Have Capacity to Marry for an illustrative case, albeit not from Arizona.
    Robert Fleming, Fleming & Curti, PLC

  5. sharone holmes

    My brother had a successful transplant (age 30) in November. Due to other complications hes been in a coma since then and has been on an uphill battle. I am his power of attorney because his wife abandoned him long before the surgery. She recently sent a letter with her intentions to pull the life support and file charges on for negligence. This is all about money. I want to file for divorce on jis behalf. He and she are both currently in Philadelphia. Hes there because thats the state that gave the transplant but he lived here in Atlanta. Any advice? 

    1. Sharone:

      Yes, we have advice. Talk to a lawyer in Philadelphia about your options. And good luck with taking care of your brother.

      Robert B. Fleming
      Tucson, Arizona

  6. george jones jr.

    My father has dementa and has been sick since 2010 and ask me to finallize a devoice between his wife that he been separted from since 1997 be he dies can i fill for him since i have poa for him . and i was ask before he bacame really bad .We leave in South Carolina.

  7. Me and my husband been merried 33 yrs in 2011 they found him incompationt so the court appointed a guardian he is 100percent disabiled veteran does the guardian have a right to tae me of as his dependent on his benifits

    1. Josie:
      I don’t know the details of your husband’s status (don’t send them to me or our office), but generally the designation of a dependent is made not by the guardian or the state court but by the benefits payors. In other words, the decision about your status is probably up to the Veterans Administration and/or Social Security. You might want to talk with a local lawyer about all the issues in your husband’s guardianship; it sounds like there are likely other problems to be dealt with.

  8. Pingback: Despite Guardianship, Ward May Have Capacity to Marry - Fleming & Curti PLC

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