Legal Question in Family Law in Illinois

Re: Mentally Incompetent Spouses as Parties to Divorce Actions

When you say �mentally incompetent person,� you are referring to what the law calls a �disabled person.� "Disabled person" means a person 18 years or older who (a) because of mental deterioration or physical incapacity is not fully able to manage his person or estate, or (b) is a person with mental illness or a person with a developmental disability and who because of his mental illness or developmental disability is not fully able to manage his person or estate, or (c) because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering.

Whether a person is a disabled adult is a matter for a judge to decide based upon evidence, but you can�t get that far without first having a physician prepare a report showing the disability.

With regard to a divorce, the guardian of a disabled adult cannot initiate a divorce action, but can continue a divorce action which was started by the adult before he became disabled. The reasoning behind this holding of law (In re Marriage of Burgess, 189 Ill.2d 270, 725 N.E.2d 1266, 244 Ill.Dec. 379 (2000)) implies that the guardian would have standing to represent the disabled adult as the respondent in a divorce action. No doubt the guardian would hire the services of a lawyer, and the lawyer would most probably be paid out of marital property and income.

Be aware that the guardian�s oath would make them a zealous foe if you were to attempt a divorce to escape your responsibility to support your mentally incompetent disabled spouse. You can be certain the judge will also be looking out for the fair and equitable treatment of the mentally incompetent disabled spouse.

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