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

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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 Responses

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

  3. 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

  4. 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

  5. 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.

  6. 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.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.