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Disability & Divorce

The law has often been behind the times as far as rulings go on specific cases. Family Law is no exception. Many of the laws do not account for special and rare circumstances. There are many disability laws and regulations implemented in other areas of law, however, there are next to none when it comes to the matter of divorce. That is until now. The Illinois Supreme Court opened the door to divorce for people who need guardians because of mental disabilities just this month, and the realm in which Family Law now covers has broadened because of it.

For years, Illinois has been against guardians seeking a divorce on behalf of the mentally disabled people under their protection. That meant the disabled person could not get a divorce unless his or her spouse started the process. To say that this is a double standard would be an understatement. However, guardians were still looked upon as just that, and in no way were they an extension of the disabled person in question.

Before the Law was Implemented

The ban, when in place, affected people with severe brain damage, but it also covered those who could make their wishes known; for example those with Alzheimer’s, or anyone with a mental illness whose effects are not 100% permanent on a daily basis.

The court’s new ruling said an outright ban is no longer appropriate. It could leave vulnerable people “at the complete mercy” of spouses who abuse them or exploit them financially. Guardians will now be able to file for divorce and then a judge will decide if there is clear and convincing evidence that it would be in the disabled person’s best interests. In some cases, that will mean weighing the evidence without any help from the person directly affected. But in others, the people with disabilities will be able to speak for themselves. This obviously depends on the type of mental illness and the severity.

Who is Affected?
At first the restriction on divorce was meant to only affect people with severe brain damage, such as might be sustained in an accident, but ultimately the law affected people who had the ability to make their wishes known. Such individuals’ mental illness may come and go, or perhaps the person’s condition was Alzheimer’s disease. Mental disability rights advocates say that those conditions in themselves should not automatically bar people’s guardians from filing for divorce on their behalf.

Many of the advocacy groups feel that this recent ruling is a step in the right direction toward fully protecting the rights of the disabled. Under the new rules, the guardian of a disabled person will be able to file for divorce on that person’s behalf, and it will be up to a judge to determine on an individual basis what is in the best interest of the disabled partner.

Incorporating disability into laws, such as the ones under the Family Law statute, is a sign that the laws are coming into their own and becoming more adaptive to everyone. With a broader scope under the law, more and more people will have equal rights when it comes to the dissolution of marriage.

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