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  • Writer's pictureTroyer & Good, PC

Case Study: Guardians and Attorneys-in-Fact Cannot Dissolve Marriage

Updated: Dec 17, 2018

A recent Court case clarified an area of law which was previously unclear: whether or not a guardian or attorney-in-fact can file a dissolution of marriage. When Jerry and Susan married, they signed a Pre-Marital Agreement. Jerry later changed his estate plan to leave Susan a larger share than the Pre-Marital Agreement provided. Jerry’s health declined and his children were given guardianship over him.

During this time, Susan filed for a dissolution of marriage. As Jerry continued to decline, Susan dismissed her petition for dissolution. However, the children (who were serving as guardians) instructed their attorney to file a cross petition for dissolution on behalf of Jerry. The attorney filed the cross petition but advised the children that there was no specific legal authority allowing guardians to pursue a dissolution of marriage.

Despite objections from Susan’s attorneys, the trial court allowed the petition to proceed.  In the midst of these proceedings, Jerry died before the marriage could be dissolved. The children, who would have gotten more had the marriage been dissolved, filed a legal malpractice claim against their attorney for not diligently prosecuting the dissolution of marriage. However, the trial court found no evidence of this claim and dismissed it.

The Court of Appeals affirmed. It agreed that there was no evidence of malpractice. In addition, it clarified the area of law regarding guardians or attorneys-in-fact filing a dissolution for marriage. The Court found that a guardian has no authority to pursue a dissolution of marriage either under family law or probate code. The children argued that they also had power of attorney and should have been able to file for dissolution. However, the Court found that an attorney-in-fact does not have authority to pursue a dissolution of marriage. It acknowledged that although the law regarding an attorney-in-fact’s power is quite broad, it does not specifically mention dissolution of marriage. Because it is not mentioned in the statute, then an attorney-in-fact does not have that authority. Therefore, the children’s cross petition for dissolution would have been unsuccessful.


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