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Guardianships and Divorce - Who has the Authority to File

Guardianships and Divorce-Who has the Authority to File?

In family law matters, guardianships are generally discussed as being over children. Guardianships can be appointed over children when the parents are unavailable, unable, or unwilling to care for their children1. These statues also control adult guardianships, as well. Adult guardianships may also become an issue in family law, and there are limitations to how guardians may act on behalf of the incapacitated party.

In general, a guardian may act in the interests of the incapacitated person they represent, signing documents and coordinating medical care. However, there are limitations to a guardian’s power. One example is that a guardian may not file for divorce on behalf of the person they represent.

A recent Court of Appeals case addressed this issue, and affirmed a previously ruling on this question2. In this case, the parties married in 1998. Just before the wedding, they signed a prenuptial agreement which stated that Husband would provide for Wife, during their marriage, “reasonable support, care, and maintenance”. After the parties were married, the Husband suffered a stroke and was put in a nursing home by his guardian, his daughter. At some point, Wife also became incapacitated, and a guardian was appointed to her.

Wife’s guardian then filed court documents to enforce portions of the prenuptial agreement, and Husband’s guardian/daughter filed divorce papers on behalf of Husband. Husband’s guardian argued that the costs of the nursing home Husband required were approximately $7000.00 per month, and that once his savings ran out, he would have to move/transfer to a facility that accepted Medicaid. Therefore, supporting Wife would cut further into Husband’s savings.

Wife’s guardian relied on Indiana case law which prohibits a guardian from filing for dissolution on behalf of an incapacitated person. Husband argued that this law was inconsistent with the current Indiana “no fault” divorce. Additionally, Husband argued that the statutory powers granted to guardians were examples, and not each and every power a guardian could exercise.

The Court of Appeals held that pursuant to the 1951 Indiana Supreme Court decision3, “an insane person cannot bring an action for divorce because he cannot consent to the filing of the complaint”. Also, “nor do the statutes on divorce or guardianship authorize the institution of suit for divorce by the guardian on behalf of his ward”. In sum, a guardian may not file for divorce on behalf of one he is representing. The Court held that the public policy behind the findings in Quear remain sound and shall be upheld.

We hope that this blog post has been informative regarding the limitations of guardians over adults in divorce cases. There are many variables in family law issues, and understanding the implications of these nuances such as prenuptial agreements and guardianships may make navigating your case more manageable or provide a greater understanding.

Ciyou & Dixon, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Jessica Keyes.


  1. See generally, Ind. Code §29-3-5-et al.
  2. Tillman v. Tillman; https://www.in.gov/judiciary/opinions/pdf/07031305pdm.pdf
  3. State ex re. Quear v. Madison Circuit Court, 99 N.E.2d 254, 256 (Ind. 1951).
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