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Illinois removes obstacle to divorce for mentally disabled

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The Supreme Court of Illinois has punched a significant hole in the state's ban on divorce for the mentally disabled. Previously, guardians could not start divorce proceedings for the mentally disabled under their care. This meant that the mentally disabled person's husband or wife had to initiate a divorce if it was ever to occur. The prohibition also included those who may have become mentally disabled after the marriage took place. For example, post-marriage disablement might occur due to injury or diseases associated with aging, such as Alzheimer's. Basically, the non-disabled spouse was in charge.

The case in front of the Supreme Court was over a married couple from Cook County. The wife became mentally disabled in 1997 from brain damage incurred due to a car accident. After a time, the daughter was named guardian of her mother. Eventually financial disagreements arose and the daughter sought a divorce on behalf of her mother. The lower courts denied her request.

Under the new ruling, guardians can initiate divorce proceedings and a court will decide whether it is in the ward's best interest. If the court finds that the evidence shows the divorce will clearly and convincingly benefit the ward, then the divorce may go forward.

Supporters of the decision hail it as a step forward, because many individuals who cannot make day-to-day decisions and need a guardian to handle their finances and affairs are quite capable of expressing themselves regarding their desire to stay married. This Supreme Court ruling lets mentally disabled persons communicate and discuss their intentions to with their guardians, who may then act on the ward's wishes. If capable, the disabled will also be able to testify as to their own desires concerning their marital status.

Source: Chicago Tribune, "Cook County case opens door to divorce for mentally disabled," Oct. 4, 2012

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