Suppose Michael and Terri Schiavo had resided in Illinois after she became incapacitated, and suppose Michael had wanted (or been willing) to divorce her – would Illinois law have allowed it?
The litigious end of Terri Schiavo’s life inspired headlines, editorials, and discussions across the country on whether Michael Schiavo, her husband and guardian, acted correctly and what, if anything, he should have done differently. Some critics of Mr. Schiavo’s actions in causing the removal of the feeding tube for his comatose wife, who died 13 days later, suggested that instead of doing so he could have simply exited the situation by divorcing her and allowing her parents, who wanted the feeding tube to remain in place, to be responsible for her care.
Having heard the Schiavos’ sad tale, let’s consider a hypothetical couple who reside not in Florida but in Illinois. Our hypothetical wife has been found by all physicians to be in a persistent vegetative state, and all agree that she has virtually no chance of recovery. Husband and wife are of modest means and have now, after several years of wife’s existing in her present state, exhausted their savings and medical insurance coverage.
The husband, who is his wife’s guardian, now accepts the physicians’ advice and conclusions that his wife has no realistic chance of recovery. Saying that his wife told him that she would not want to be kept alive in such a state by artificial means, he directs medical staff to remove her feeding tube. Her parents object, saying that they are willing to assume complete personal and financial responsibility for her care if the husband will divorce her. What if our hypothetical husband we’re willing to honor that request? Could he divorce his incapacitated wife in Illinois?
Can a guardian authorize a ward’s divorce?
ISBA member Alan Pearlman thinks Illinois courts would not permit this hypothetical couple to divorce. He cites what he regards as a controlling Illinois Supreme Court case, In re Marriage of Drews, 115 Ill 2d 201, 503 NE2d 339 (1986).
In Drews, the husband sustained a severe and disabling head injury in an automobile accident. Some months later, according to the court opinion, his wife moved out of the marital home and abandoned her husband to his parents’ care. The husband’s mother was then appointed plenary guardian of the husband’s estate and his person. Under that authority, she filed a petition on her son’s behalf for the dissolution of his marriage, alleging desertion and extreme and repeated mental cruelty.
The wife moved to dismiss the petition with prejudice, claiming that her mother-in-law lacked standing to maintain an action for the dissolution of her son’s marriage. The supreme court held that in Illinois, as in the majority of states that have considered the question, absent statutory authorization, a guardian cannot maintain an action on behalf of a ward for the dissolution of the ward’s marriage.
In so holding, the court discussed section 11a-17(a) of the Probate Act, which directs the guardian, on behalf of the ward, to make provision for the ward’s “support, care, comfort, health, education and maintenance, and such professional services as are appropriate” and also requires the guardian, insofar as is possible, to “assist the ward in the development of maximum self-reliance and independence.” Saying that the dissolution of a marriage is a personal, not a financial, proceeding, the court found that neither that provision nor any of the Probate Act’s other provisions concerning guardianship conferred standing upon a guardian to initiate an action for the dissolution of a ward’s marriage.
What if a dissolution action was pending at the time of our hypothetical wife’s incapacity? Could it continue – with the appointment of a guardian other than her husband – or would it have to be dismissed under the rule in Drews?
The legislature amended section 11a-17 of the Probate Act in 2000 to specifically permit a guardian to continue a dissolution of marriage action that the ward filed prior to being adjudicated a disabled person. 755 ILCS 5/11a-17(a-5). If our hypothetical wife had filed a petition for dissolution before the onset of her disability, her guardian could proceed with that petition. If her husband had done so, however, that statute would not specifically authorize the guardian to proceed on the wife’s behalf.
Later case law hasn’t addressed that precise issue, but has provided a guardian with more latitude. In In re Marriage of Burgess, 189 Ill 2d 270, 725 NE2d 1266 (2000), the supreme court again considered the standing of a guardian in a dissolution action. In that case, Donald Burgess had filed a petition for dissolution of his marriage to Sharron Burgess. A year later, while the petition was still pending, Donald was adjudicated a disabled person, and his sister was appointed guardian of his person and his estate. Sharron then moved to dismiss the dissolution action, alleging that Donald’s guardian lacked standing to continue the action on Donald’s behalf.
The circuit court certified for appeal whether a disabled person’s guardian might continue a pending dissolution action that the disabled person had filed prior to the institution of the guardianship petition and the finding of disability. The supreme court distinguished Drews, noting that there were no facts in that case indicating that the ward would have wanted to seek a dissolution of his marriage, and said “[w]hile the risk that a guardian may be acting contrary to a ward’s wishes may support the rule that a guardian’s power to initiate a dissolution proceeding must be specified by the legislature, this policy consideration does not justify requiring express statutory authority for a guardian to continue a ward’s dissolution proceeding. When the ward has filed an action for dissolution of his or her marriage, the ward’s desire and intention to end the marriage is clear.”
Additionally, the court found that a guardian’s authority to continue a dissolution action on behalf of a ward might be implied from the same language of section 11a-17 of the Probate Act that the Drews court had decided did not confer standing upon a guardian to initiate a petition for dissolution. 755 ILCS 5/11a-17(a). The court held, therefore, that a guardian may continue a dissolution proceeding that the ward had filed prior to being adjudicated disabled. However, the court emphasized that its holding was limited to the narrow question presented, which, even at the time of the opinion’s issuance, had been mooted in future such cases by the legislative amendment to section 11a-17.
Forget Michael the guardian – what about Michael the husband?
While the wife’s guardian might not be able to file a petition for dissolution under the rule of Drews and Burgess, would anything prevent our hypothetical husband from filing for divorce himself and having his petition granted? Don’t forget “a little thing that Illinois likes to call grounds,” Pearlman warns. Under 750 ILCS 5/401(a), a marriage may be dissolved only if a court finds that one or more of the grounds for dissolution enumerated therein is present. Pearlman rejects any suggestion that a respondent spouse in a persistent vegetative state could be found to be culpable for any of those grounds. Even if the wife had been guilty of, say, mental cruelty before the onset of her disability, Pearlman believes that ground would disappear once the spouse no longer had the requisite mental capacity for mental cruelty.
The statute’s alternative ground, set forth in 750 ILCS 5/401(a)(2), of living separate and apart for more than two years won’t work, either, since that ground also requires irreconcilable differences that have caused the irretrievable breakdown of the marriage, opines Pearlman. Other experienced family law practitioners, including ISBA members Carole Betz and Andrea Schleifer, though, think that ground would be worth a try for our hypothetical husband.
If a divorce were to be granted in this hypothetical situation, Skokie practitioner Gail Schiesser suspects “that no Illinois court would grant a dissolution without substantial maintenance to be paid for the care of the disabled spouse.” Just as parents cannot negotiate away child support for their children, “the parents of this disabled adult could not negotiate away her maintenance,” opines Schiesser. What’s the best solution in this miserable situation? Perhaps it’s for the nondisabled spouse simply to do the best he can within the marriage, as many who sympathized with Michael Schiavo feel that he did. –