ONDA partner Richard Orsinger argued a case that the Texas Supreme Court addressing two key divorce issues.
- Can a guardian petition for divorce on behalf of a ward?
- What is the effect of a spouse’s death on an appeal from a divorce decree?
“If there is no jurisdiction to review the dissolution of marital bonds, we don’t get to the issue of whether the guardian has the capacity to file for divorce,” Mr. Orsinger told the court. “Our view is upon the death of a divorcee, the appeal of the dissolution is terminated, becomes final, and is automatically severed.”
Carlos and Leticia Benavides married in 2005. Carlos was placed under guardianship due to his incapacity, and his daughter, Linda, became his guardian. Linda separated Carlos from Leticia and in 2018 filed for divorce on Carlos’s behalf, citing that Carlos and Leticia had lived apart for more than three years—this is a no-fault ground for divorce under Texas law.
The trial court granted the divorce and Leticia appealed, but Carlos passed away during the appellate process. The Court of Appeals ruled that Carlos’s death made Leticia’s appeal moot, though it upheld the divorce decree and division of property.
Leticia has now petitioned the Texas Supreme Court, arguing that her appeal is still relevant, a guardian cannot file for divorce on behalf of a ward, and that a living-apart divorce requires voluntary separation by at least one spouse.
Mr. Orsinger also argued that a court-appointed guardian of a totally-incapacitated ward is by law the only person who can give consent on behalf of the ward. In this instance the Guardianship Court specifically authorized the guardian to pursue the divorce on behalf of the ward.
Additionally, Mr. Orsinger argued that the Supreme Court’s barring all guardians from pursuing a divorce on behalf of the ward, regardless of the circumstances, would deny wards equal protection of the law and would also deny wards the constitutional right to access to the courts.
Mr. Orsinger argued that Carlos’ death eliminates the need to review the guardianship issue because the appeal regarding the dissolution of marriage is no longer valid.