THE MARRIAGE TRAP: HOW GUARDIANSHIP DIVORCE BANS ABET SPOUSAL ABUSE

Abstract

A growing minority of states allow a guardian to sue for divorce on behalf of a ward where not expressly barred or allowed by statute. If a ward is not lucky enough to live in one of those protective states, like Irva prior to her victory in the New Mexico Supreme Court, that person is helpless to change the situation if his or her competent spouse does not want a divorce. The incompetent, vulnerable spouse is trapped in an unwanted, potentially abusive, marriage. In this Note, I propose that states dispense with the traditional majority rule. The likelihood of spousal abuse is far greater than the risk of divorce claims brought by delusional, but still volitionally competent, spouses. Additionally, court review of competence in divorce proceedings and in competence hearings provides multiple opportunities for the examination and protection of all parties' interests. The bright-line bar on guardian divorce actions under the majority view denies opportunities to adjudicate and ensure equity between spouses whose relationship and power has dramatically changed.