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Michigan Family Law Blog

Can a Person With an Appointed Guardian Get Divorced?

Posted by Cameron Goulding | Jul 25, 2020 | 0 Comments

If a person is not able to handle their affairs or is deemed legally incompetent, then in most cases, the court will appoint a guardian to handle that person's affairs.  The guardian then can make decisions on that person's behalf for medical care, living arrangements and basically all of the person's affairs.  Because I am a divorce lawyer, a friend consulted me about having one of his client's get divorced because it would benefit the family as far as types of truly needed assistance that could be available to help this client.  The husband and the wife were not living together because the husband was in a nursing home suffering from alzheimer's, the wife was not capable of caring for him and the court appointed the son as his guardian.    

Can a Person Deemed Mentally Incompetent Get Divorced?

There are some situations where it is helpful for a person to get divorced because it will allow them to obtain needed government benefits that can assist with their living expenses and necessities that the person cannot qualify for when married.  There is case law from the Michigan Court of Appeals which indicates that a person for whom the court has appointed a guardian cannot enter into a legally binding marriage.

In the recent case of Burgess v Burgess, Michigan Court of Appeals unpublished opinion no. 348068, March 24, 2020, the court granted an annulment of the marriage because the husband was under a guardianship at the time that the marriage took place.  In that case, the husband was separate from his wife under a legal separate maintenance agreement when he met Linda (whom he would later marry).  The relationship between Linda and the husband led to the husband wishing to get divorced but there were concerns about the husband's competency, so his attorney in the divorce case petitioned the probate court for a guardian.  The probate court appointed Linda as his guardian and therefore determined that the husband was incompetent.

With the guardianship in place, the guardian was able to petition the court for the divorce and the court granted it.  But the story does not end there.  Linda and the husband subsequently married and she continued to manage his affairs, however, at some point, Linda and his daughter had strong disagreements and Linda moved out.  Before moving out, she resigned as guardian and his son Scott became his guardian.  Scott then filed for an annulment against Linda contested the annulment and the court instead granted her a divorce, however Scott appealed.  The Michigan Court of Appeals found that while a person with a guardian may get a divorce, the same person has been deemed to be legally incompetent to contract and therefore is not capable of entering into a marriage contract and ordered the annulment.

Michigan Family Law Attorneys are Available to Help

While this type of complicated issues is not likely to come up in most cases, divorce and child custody battles are often emotionally charged and may involve complex issues requiring immediate attention. Even under the best circumstances, these matters are stressful and difficult to understand.

If you have concerns regarding your divorce or child custody matters, our experienced legal staff can help. Contact our Oakland County, Michigan divorce lawyers today to speak with an attorney who will guide you through this challenging time.

About the Author

Cameron Goulding

A native of Oakland County, Michigan, family lawyer Cameron C. Goulding has been providing counseling and legal services of the highest caliber to individuals and families in Southeastern Michigan for over 24 years. Mr. Goulding grew up in Oakland County, Michigan and graduated from Birmingham G...


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