Divorce Guardian?

In the United States, researchers estimate that over half of all marriages end in divorce. There are some well known factors that put people at higher risk for divorce. Many of the reasons cited for divorce are obvious: lack of commitment, too much arguing, infidelity, marrying too young, unrealistic expectations, lack of equality in the relationship, lack of preparation for marriage, and abuse.

Often, as a result of the declining health of an individual (physical and/or mental) there can be a breakdown in the marital relationship.  The stress and change in the health of one spouse can be too much for the other to bear. If a spouse’s health requires the appointment of a guardian and the marriage is falling apart, can the two divorce?

Divorce Guardian A Guardian is a person appointed by a probate court and given the power and responsibility to make certain decisions about the care of the protected person. These decisions might include treatment decisions or where the protected person should live.  The guardian’s powers are limited to decisions regarding the care and custody of the protected person.

The issue is whether a divorce can be initiated by a guardian of person that is not competent to initiate on their own.

The Michigan Court of Appeals ruled In Smith v. Smith 125 Mich.App. 164335 N.W.2d 657 (1983), that a mentally incompetent spouse can bring a divorce action by her guardian. The ruling appears to be consistent with Michigan’s guardianship statutes and the Michigan Court Rules. Twenty year later, the Michigan Court of Appeals again ruled in Houghton v. Keller, 256 Mich. App. 336 (2003) that “a guardian can bring an action for divorce on behalf of an incompetent spouse.”

The Probate Pro can assist through these difficult and emotional issues.