Family Law Blog: Guardian Lacks Authority to Petition for Dissolution of Marriage

Case: In Re the Marriage of: Harry L. Tillman v. R. Virginia Tillman
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Under Indiana’s current guardianship and divorce statutes, a guardian lacks the authority to file a petition for dissolution of marriage on behalf of an incapacitated person.

Husband and Wife married in 1998. Prior to doing so, the parties entered into a premarital agreement whereby Husband agreed to provide “reasonable support, care, and maintenance” to Wife during the marriage.

In 2008, Husband suffered a stroke and was subsequently found by the Vanderburgh Superior Court to be incapacitated. Husband’s daughter from a prior marriage was appointed to be guardian over Husband’s estate and person. Husband was placed into a nursing home which, apparently, was expensive relative to Husband’s financial resources, leaving insufficient funds to provide adequately for both Husband and Wife.

In 2012, the guardian for Wife – who had separately been determined to be incapacitated – filed a petition seeking enforcement of the support, care, and maintenance provision of the parties’ premarital agreement. In response, Husband’s guardian filed a petition for dissolution of marriage on Husband’s behalf. Wife moved to dismiss the petition for dissolution. After a hearing, the trial court dismissed the petition for dissolution of marriage that Husband’s guardian had filed on Husband’s behalf. Husband’s guardian, on Husband’s behalf, appealed.

The Indiana Court of Appeals reviewed the 1951 State ex rel. Quear v. Madison Circuit Court decision. There, in a factually similar case, the Indiana Supreme Court held that “[a]n insane person cannot bring an action for divorce because he cannot consent to the filing of the complaint. . . . [n]or do the statutes on divorce or guardianship authorize the institution of a suit for divorce by the guardian on behalf of his ward.”

The Court of Appeals noted that, though Quear is over 60 years old, nothing in the guardianship or divorce statutes has change materially so as to allow, today, for a guardian to file for divorce on behalf of the ward. Thus, Quear remains controlling law, and the trial court was correct to dismiss the petition for dissolution that Husband’s guardian had filed on Husband’s behalf.

The trial court’s decision was affirmed.

To view the text of this opinion in its entirety, click here: In Re the Marriage of: Harry L. Tillman v. R. Virginia Tillman


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The Matrimonial Law Group of Bingham Greenebaum Doll, LLP is one of the largest full-service matrimonial and family law practices in the State of Indiana. We represent clients in a wide spectrum of family law matters, including premarital agreements, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at

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