In a previous blog post, we explored who can file for divorce, and how Indiana Courts have held that a guardian of an incapacitated adult may not file for divorce on behalf of that incapacitated person1. A recent Indiana Senate Bill seeks to change this process, and would allow for a guardian to file for divorce on behalf of an incapacitated adult under certain circumstances.
Senate Bill 592 has been proposed and will be heard by the Senate Judiciary Committee. The Bill provides that a guardian could file for dissolution on behalf of an incapacitated person after requesting permission “only if the guardian proves by a preponderance of the evidence that the dissolution of marriage is in the best interests of the protected person”. Additionally, the guardian cannot delegate his/her power to petition for dissolution on the behalf of the incapacitated individual.
In a petition by a guardian on behalf of an incapacitated person, under Senate Bill 59, the guardian would be named in the Petition for Dissolution and file the Court Order granting permission to file the Dissolution action along with the Petition for Dissolution.
Often, guardianships can complicate divorce matters as there are property division issues, and sometimes child custody and support matters to be addressed. Additionally, if one parent is incapacitated, this may cause concerns by the children of the parties of the impact on the parent in divorce, physically, emotionally, and financially.
Guardianships over incapacitated individuals create unique concerns in family law, and especially divorce. As historically, guardians have not been permitted to file divorce on behalf of an incapacitated individual, Senate Bill 59 may change the way divorce filings proceed.
We hope that this blog post has been helpful in exploring upcoming legislative proposals to family law. This post is not intended as legal advice. Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Jessica Keyes.
- See, for example, Tillman v. Tillman
- See https://iga.in.gov/legislative/2014/bills/senate/59/
