Marriage, Guardians, and the Volitional Nature of Divorce in Texas: Commentary on Chief Justice Blacklock’s Concurrence in In the Matter of the Marriage of Carlos Y. Benavides, Jr. and Leticia R. Benavides

I. Introduction

The concurring opinion by Chief Justice James D. Blacklock in In the Matter of the Marriage of Carlos Y. Benavides, Jr. and Leticia R. Benavides, No. 23‑0463 (Supreme Court of Texas, April 25, 2025), is not a routine family‑law concurrence. It is a wide‑ranging jurisprudential essay on the nature of marriage, the limits of guardianship, and the unavoidable moral content of judicial decision-making in domestic relations.

The case arises out of a divorce proceeding in which one party’s capacity—and the authority of a guardian to act in divorce—came to the forefront. Although the Supreme Court of Texas resolved the appeal without definitively deciding whether a guardian may obtain a divorce on behalf of a mentally incompetent ward, that unresolved question forms the centerpiece of Chief Justice Blacklock’s concurrence.

The central issue he addresses is:

May a guardian initiate and prosecute a divorce on behalf of an adult ward who lacks the mental capacity to “intelligently exercise the will” to end the marriage?

The majority opinion (not reproduced here) explicitly declines to answer that question because it finds the case resolvable on narrower grounds. Chief Justice Blacklock joins the Court’s opinion and judgment in full, but writes separately to:

Defend what he calls the “traditional” or “majority” rule historically prevailing in American law, under which divorce is too personal and volitional to be pursued by a guardian.
Critique more recent judicial trends that authorize guardians to seek divorce based on a judicial “best-interest” determination rather than the ward’s own volitional decision.
Highlight the tension between this traditional understanding and the Texas Supreme Court’s brief 1988 decision in Wahlenmaier v. Wahlenmaier.
Articulate a foundational view of marriage as a natural, pre‑legal institution whose essence the law must respect rather than redefine.

While the concurrence does not itself establish binding precedent, it is an important signal of how at least three members of the Court (Chief Justice Blacklock, Justice Devine, and Justice Sullivan, who join the concurrence) understand marriage, divorce, and guardianship as a matter of Texas law and legal philosophy. It is therefore of substantial predictive and interpretive value for future Texas family-law and guardianship litigation.

II. Summary of the Concurrence

A. The Court’s Posture and the Unanswered Question

The Court, in the majority opinion, “prudently declines to definitively answer” whether a guardian may obtain a divorce on behalf of a ward who cannot intelligently decide to end the marriage. The case can be resolved without tackling that foundational question, and Chief Justice Blacklock agrees that the Court should not reach further than necessary.

Still, he stresses that this silence does not mean there is no legal answer—only that the Court should wait for a case that squarely requires one. In his view, both existing common-law principles and historical Texas authority strongly favor the traditional rule that:

“the right to end a marriage through divorce is volitional and personal” and cannot be exercised by a guardian absent clear legislative authorization.

B. The Traditional View: Marriage and Divorce as Volitional Acts

Drawing on historical sources, Chief Justice Blacklock describes the traditional common-law understanding of marriage and divorce:

Marriage is a natural relationship that predates the state and is merely recognized and regulated—but not created—by law.
Both the creation and dissolution of a marriage require the personal exercise of will by the spouses.
Because a divorce is too “personal and volitional,” a third party such as a guardian cannot initiate a divorce unless the legislature has expressly authorized that power.

This view is well captured in a quotation he adopts from Shenk v. Shenk, an Ohio appellate case from 1954:

“It [marriage] cannot be dissolved except by the consent and the intelligent exercise of the will of one of the parties. That is to say, that no matter what or how many valid grounds for divorce exist, it is only by the decision and will of the party aggrieved that an action for divorce may be brought.”

C. The Modern Trend: Guardians and Judicial “Best-Interest” Divorces

Chief Justice Blacklock acknowledges that many modern courts have drifted away from the traditional rule. Those courts allow guardians to seek divorce on behalf of incompetent wards, frequently on the theory that:

Divorce is now “no-fault” and less about proving “injury” than about recognizing relational breakdown.
Guardians already make other profound decisions for wards (e.g., medical treatment, life support, sterilization), so divorce can be analogized to these.
Courts can use a best‑interest standard to decide whether divorce is appropriate for the ward.

Blacklock’s core concern is that under this approach, the decision to dissolve the marriage shifts from being the spouse’s volitional choice to being the judge’s best-interest determination, usually acting through the guardian.

D. Marriage as a Natural Fact and the Role of Moral Judgment

A central theme of the concurrence is that marriage is not a mere civil status created by statute. Rather, it is a “unique, natural relationship” that:

Exists before and beyond positive law.
Requires judges to make moral judgments about its nature when deciding how law interacts with it.

He argues that judges cannot avoid moral reasoning in this domain; they either:

Accept the traditional moral judgment that marriage and divorce are “too personal and volitional” to be carried out by proxy, or
Replace it with a new moral judgment that they are not too personal and can be decided by guardians and judges.

In his view, modern courts have not escaped moral judgment; they have simply changed the content of that judgment.

E. Texas Law: From Traditional Rule to Wahlenmaier

Historically, Texas aligned with the traditional rule:

Early Texas decisions and a 1986 Court of Appeals case (Hart v. Hart) treated divorce as a decision “exclusively within the discretion of the parties,” not exercisable by a guardian or next friend for a mentally incompetent spouse.

But in 1988, the Texas Supreme Court decided Wahlenmaier v. Wahlenmaier, a short per curiam opinion stating that:

“a guardian ad litem or next friend can exercise the right of a mentally ill person to obtain a divorce.”

Chief Justice Blacklock notes that Wahlenmaier offered no analysis of the traditional rule or its moral and jurisprudential foundations. He suggests that it stands in tension with the deeper principles long recognized in Texas and elsewhere, but agreed that the present case did not require resolving or revisiting that tension.

F. The Limits of “Best-Interest” Reasoning in Marriage

The concurrence emphasizes that questions like:

“Should I be married?” or
“Do I want to remain married?”

are categorically different from questions like:

“Should my life support be withdrawn?” or
“Is a particular medical procedure in my best interest?”

For Chief Justice Blacklock, the central insight is this:

“Whether I want to be married and whether somebody thinks I should be married are two completely different questions, and only the former has any bearing on the question of whether I am or will remain married.”

If a person loses the capacity to decide for himself, the question of whether he should be married can no longer be answered—and cannot be answered for him by judges or guardians without changing the very nature of marriage and divorce.

G. Conclusion of the Concurrence

Chief Justice Blacklock closes by reaffirming his sympathy for the traditional rule and signaling that, if directly presented with the question in a future case, he would likely favor a return to that approach:

“On this and other matters, if I must choose between the accumulated wisdom of the ages and the ‘recent and growing trend among American courts,’ I expect the choice will be easy.”

He respectfully concurs in the Court’s opinion and judgment, while preserving and elaborating a robust conceptual framework for future cases touching the intersection of guardianship, capacity, marriage, and divorce.

III. Precedents and Authorities Cited

A. Foundational Conceptual Authorities

1. Lewis v. Ames, 44 Tex. 319 (1875)

Blacklock opens by quoting this early Texas decision:

“The [marriage] relation itself is natural; the prescribed impediments and the forms of laws for its legal consummation are artificial, being the work of government.”

The quotation does crucial work:

It distinguishes between marriage as a natural relation and the legal framework that surrounds it.
It grounds his later claim that the law responds to marriage but does not create its essence.
It supports the idea that judges must look beyond the statute book to understand what marriage is before deciding how law may end it.

2. Shenk v. Shenk, 135 N.E.2d 436 (Ohio Ct. App. 1954)

Shenk is the key case capturing the traditional view of divorce:

“It cannot be dissolved except by the consent and the intelligent exercise of the will of one of the parties.”

This serves several functions in the concurrence:

It encapsulates the notion that divorce is essentially volitional.
It links the validity of a divorce action to the actual will of the aggrieved spouse.
It thereby undercuts any attempt to treat divorce as an ordinary legal remedy that may be sought by any representative empowered to act generally for the ward.

Shenk stands not as a mere procedural case, but as an articulation of the moral and conceptual nature of divorce that underpins the traditional rule.

B. Traditional Rule Cases: Guardians Cannot Seek Divorce Absent Clear Statute

Chief Justice Blacklock collects a long line of decisions from various states that reflect what he calls the “traditional rule.” A modern synthesis of this rule appears in Flory v. Flory, 527 P.3d 250 (Wyo. 2023), which he quotes:

“Under the traditional rule, courts do not read statutes granting guardians general powers to act on behalf of the ward as authorizing divorce actions because the decision to divorce is too personal and volitional to be pursued at the pleasure or discretion of a guardian.”

The cases he cites (largely through footnote 1) include:

Samis v. Samis, 22 A.3d 444 (Vt. 2011) – Vermont adheres to the principle that the right to end a marriage is so personal and volitional that the legislature did not intend, through general guardianship authority, to permit guardians to invoke it.
In re Marriage of Denowh ex rel. Deck, 78 P.3d 63 (Mont. 2003) – Montana holds that it is “inappropriate” for a guardian to bring or maintain a dissolution proceeding on behalf of an incapacitated person.
Murray ex rel. Murray v. Murray, 426 S.E.2d 781 (S.C. 1993) – South Carolina adopts the “majority rule” that a mentally incompetent spouse may not bring an action for divorce, either personally or through a guardian.
State ex rel. Quear v. Madison Cir. Ct., 99 N.E.2d 254 (Ind. 1951) – Indiana finds no jurisdiction for divorce actions brought by guardians where neither guardianship statutes nor divorce statutes grant such power.
Scott v. Scott, 45 So.2d 878 (Fla. 1950) – Florida holds that, absent a specific statute, the right to sue for divorce is of such a “strictly personal and volitional nature” that it must remain personal.
Phillips v. Phillips, 45 S.E.2d 621 (Ga. 1947) – Georgia refuses to consider a guardian as the keeper of a ward’s “conscience” on such a matter; there is no statutory authorization.
Mohrmann v. Kob, 51 N.E.2d 921 (N.Y. 1943) – New York holds that courts cannot grant to a guardian the power to seek dissolution of a ward’s marriage absent legislative action.
Birdzell v. Birdzell, 6 P. 561 (Kan. 1885) – Kansas holds that whether to seek divorce is a personal matter requiring an “intelligent election” that cannot be made by an insane person.

Taken together, these cases embody several doctrinal propositions:

General grants of power to guardians are not construed to include the authority to seek divorce.
Divorce is not merely another legal action but one that is intrinsically personal and volitional.
Absent express legislative language, courts will decline to create such authority by judicial implication.

Chief Justice Blacklock endorses this line of authority both descriptively (as the traditional majority rule) and normatively (as the rule he finds “compelling”).

C. Modern Trend Cases: Moving Away from the Traditional Rule

In footnote 2 and related text, Blacklock describes the more recent trend of decisions in which courts have authorized guardians to seek divorce on behalf of incompetent spouses, often without clear legislative directives. He notes that these modern cases are driven largely by judicial, not legislative, innovation.

Karbin v. Karbin ex rel. Hibler, 977 N.E.2d 154 (Ill. 2012)
Illinois, having adopted no-fault divorce, reasoned that the decision to divorce is not qualitatively distinct from other deeply personal decisions (termination of life support, involuntary sterilization). With “injury” removed from divorce law, it becomes easier to see guardians as appropriate decision-makers.
In re Marriage of Gannon, 702 P.2d 465 (Wash. 1985) (en banc)
Washington’s high court, referencing modern realities like no-fault dissolution and life‑support termination, concluded that an absolute rule barring guardians from seeking divorce is no longer justified or in the public interest.
Ruvalcaba ex rel. Stubblefield v. Ruvalcaba, 850 P.2d 674 (Ariz. Ct. App. 1993)
Arizona found the reasoning of newer decisions persuasive and allowed guardians to bring dissolution actions on behalf of incompetent adult wards.

Chief Justice Blacklock stresses that these courts have not escaped moral reasoning; they have simply replaced an older moral judgment (that divorce is too personal to be exercised by proxy) with a new one (that it is not too personal to be exercised by proxy, at least with safeguards).

D. Texas Authorities on Guardians and Divorce

1. Early Cases and Hart v. Hart

Blacklock notes that Texas “appears largely to have followed the traditional rule for most of our history,” citing:

Skeen v. Skeen, 190 S.W. 1118 (Tex. App.—Dallas 1916, no writ)
Interpreted a statute that barred granting a divorce when either spouse was insane to also bar a next friend from intervening to prosecute a pending divorce suit on behalf of the insane spouse.
Dillion v. Dillion, 274 S.W. 217 (Tex. App.—Amarillo 1925, no writ)
Concluded, consistently with other jurisdictions, that an insane plaintiff cannot maintain an action for divorce, either in her own name or by next friend.
Hart v. Hart, 705 S.W.2d 332 (Tex. App.—Austin 1986, writ ref’d n.r.e.)
Held explicitly that the dissolution of the marital relationship “lies exclusively within the discretion of the parties to the marriage and may not be exercised by a next friend or guardian of a mentally incompetent spouse.”

These authorities squarely align Texas with the traditional rule: no guardian-initiated divorces absent express statutory authorization, and a strong emphasis on the personal and volitional nature of divorce.

2. Wahlenmaier v. Wahlenmaier, 762 S.W.2d 575 (Tex. 1988) (per curiam)

In 1988, the Texas Supreme Court decided Wahlenmaier in a terse per curiam opinion. It stated:

“a guardian ad litem or next friend can exercise the right of a mentally ill person to obtain a divorce.”

Chief Justice Blacklock notes several important features:

Wahlenmaier gave virtually no reasoning or analysis.
It did not engage the rich moral and jurisprudential foundation of the traditional rule.
It appears in direct tension with cases like Hart, Dillion, and Skeen, and with the broader traditional rule in other states.

Although he does not call for its overruling in this case, he flags it as a problematic decision that may require re‑examination when the question is squarely presented and outcome-determinative.

E. Scriptural Reference

Chief Justice Blacklock briefly cites Genesis 2:24:

“Therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh.”

He does not rely on scripture as a source of positive law; rather, he uses it as evidence of:

The deep, pre‑legal, and often spiritual understanding of marriage held by many people.
The difficulty courts face in attempting to weigh the “spiritual benefits” of marriage or divorce for those who cannot express a will.

The reference reinforces his theme that marriage has dimensions beyond the capacity of courts to evaluate through a secular best-interest calculus.

IV. The Court’s Legal Reasoning in the Concurrence

A. Marriage as a Natural, Pre‑Legal Institution

A core premise of the concurrence is that marriage:

“Pre‑dates and transcends our law,” and likely “will post‑date our law.”
Is “a unique, natural relationship reflected in the law and recognized by the law, but it was not created by the law.”

From this, Chief Justice Blacklock draws an important methodological point:

Just as a judge must understand the nature of “property” to decide when and how property rights end, so too must a judge understand the nature of “marriage” to determine when and how it can be dissolved.
Statutes (such as the Family Code) operate on this pre‑existing reality; they do not define it into existence.

This is more than rhetoric; it is a statement about how judges must interpret law in an area where the legal status rests upon a pre‑legal institution.

B. The Essential Volitional Character of Marriage and Divorce

From the natural character of marriage, Blacklock infers a second foundational premise:

Marriage comes into existence through a mutual, volitional act—consent.
Divorce, analogously, is an act that terminates the marriage by at least one spouse’s volitional decision to end it.

He adopts and elaborates the traditional view that an “exercise of the will” is an essential element of both marriage and divorce.

This leads him to a key implication:

If an essential element of both marriage and divorce is the freely given expression of the human will, then when nature renders it impossible for that will to be expressed, neither a judicial best-interest analysis nor anything else can replace it. The thing can no longer be done.

This is a categorical boundary claim: beyond a certain point of incapacity, the law simply cannot perform a true “divorce” in the full sense of the institution because the necessary volitional component is missing.

C. The Inescapability of Moral Judgment

Chief Justice Blacklock rejects the premise that judges can decide these matters on purely procedural or neutral grounds. When courts confront issues involving marriage, divorce, and family life, they are necessarily making moral judgments, even if they:

Frame their reasoning in terms of statutory construction or constitutional doctrine, or
Pretend that marriage is merely a civil status defined by the Family Code.

He articulates two competing moral frameworks:

Traditional Moral Judgment: Marriage and divorce are so personal and volitional that they cannot be exercised by third parties like guardians; courts should refuse to read general guardianship powers to include divorce absent explicit legislative command.
Modern Moral Judgment: Divorce is sufficiently analogous to other important decisions (e.g., medical decisions) that guardians and judges, acting in the ward’s perceived best interest or under substituted judgment, may validly decide to end a marriage.

He insists that when modern courts abandon the traditional rule, they do not abandon morality; they simply substitute a new moral understanding. This candid acknowledgment resists the notion that family law can be made value‑neutral.

D. The Limits of Judicial “Best-Interest” Determinations in Marriage

The concurrence recognizes that guardianship law often employs a best‑interest standard or a substituted-judgment standard for decisions about:

Medical care (including life support).
Placement in institutions or group homes.
Financial management and property transactions.

However, Blacklock insists that the very nature of marriage and divorce makes these standards ill‑suited. His reasoning:

Whether a person is or remains married turns on whether that person wants to be married.
“Best interest” is the perspective of a third party looking in; “will” is the perspective of the person herself.
If the person can no longer form or express such a will, no one else can supply it without changing the nature of the institution.

Accordingly, he is wary of what he describes as the Court’s own recognition that, if guardians are allowed to obtain divorce, “the fate of the ward’s marriage turns ultimately on a best‑interest determination by a judge, not on an expression of the ward’s desire to end the marriage.”

This is, in his view, a decisive reason to resist extending guardians’ powers into the realm of divorce.

E. Deference to the Legislature vs. Judicial Innovation

Chief Justice Blacklock introduces an important institutional distinction:

If the Legislature explicitly authorizes guardians to obtain divorces for incompetent wards, then the relevant moral and policy judgment has been made by the people’s elected representatives, and courts will ordinarily be bound to follow that choice.
Where, however, the statutes are silent—as they largely are in Texas—the question is whether courts should infer or create such authority as a matter of judicial doctrine.

He criticizes the modern trend in which courts, often without clear statutory authorization, expand guardians’ powers to include divorce. In his view, these courts are making a substantial change in both law and underlying moral understanding, and doing so without democratic accountability.

F. The Role of Texas Common Law and the Status of Wahlenmaier

The concurrence asserts that Texas law does not lack an answer simply because the Family Code is silent. Instead:

Texas’s historical cases (Skeen, Dillion, Hart) align with the traditional rule.
Wahlenmaier, a short per curiam opinion, suggests a different direction but offers no engagement with those foundations.

From this, he suggests:

Texas’s traditional legal culture is deeply tied to the volitional character of divorce.
Wahlenmaier may represent a departure from that tradition that should be re‑examined.

Yet he explicitly acknowledges that the case at hand does not require such re‑examination and is content to leave the formal status of Wahlenmaier for another day—while clearly announcing his skepticism about its theoretical underpinnings.

G. Capacity, the End of Choice, and the Limits of Law

Perhaps the most philosophically striking portion of the concurrence is this passage:

“I am inclined to think that only the individual person can answer, for himself, whether he should be married. If he becomes incapable of answering the question, there is nobody else to ask. The question can no longer be answered.”

This reasoning:

Frames incapacity as a boundary condition on legal action: once will is impossible, certain legal acts that inherently require will cannot be performed.
Suggests that law cannot always “solve” tragic or difficult situations; it can manage property and personal safety but cannot meaningfully replicate a lost choice.
Implies that the proper judicial response is not to pretend that a true divorce decision has been made, but to manage the consequences with “prudence and compassion” through other legal means (e.g., protective orders, guardianship management of property, support regimes).

V. Impact and Implications

A. Doctrinal Impact: No New Holding, but a Strong Signal

Formally, the concurrence does not change Texas law:

The Court declines to decide whether guardians may obtain divorces for incompetent wards.
Wahlenmaier remains on the books, and the Family Code remains silent on the specific question.

However, substantively and prospectively, the concurrence is highly significant:

At least three justices (Blacklock, Devine, Sullivan) have openly embraced the traditional rule as a compelling framework.
They have also highlighted the fragility of Wahlenmaier and the depth of the tradition it conflicts with.
This will likely encourage future litigants to raise and fully brief the question in a case where it is outcome‑determinative.

In that sense, the concurrence functions as an invitation to relitigate and reconsider the scope of guardian authority in divorce and the continued vitality or proper interpretation of Wahlenmaier.

B. Practical Implications for Guardianship and Family-Law Practice

For practitioners, the opinion suggests several practical cautions:

Guardians seeking divorce for an incompetent ward in Texas should:
- Be aware that the Supreme Court is sharply divided, at least conceptually, on whether this is permissible absent explicit statutory authorization.
- Expect challenges that argue for a strict reading of guardianship statutes and a narrow or reconsidered interpretation of Wahlenmaier.
Trial courts may:
- Exercise greater caution before allowing guardian-initiated divorces, anticipating appellate scrutiny.
- Consider using other available tools (protective orders, property management, separation arrangements, support orders) to protect wards’ interests without necessarily dissolving the marriage.

In the absence of legislative clarification, practice in this area may become more uncertain, with more frequent interlocutory appeals or mandamus actions on the scope of guardian authority in divorce litigation.

C. Policy Tensions: Protection vs. Volitional Integrity

The concurrence brings into sharp relief a genuine policy dilemma:

On one hand, vulnerable incompetent spouses may be trapped in marriages that are physically, emotionally, or financially harmful, with limited recourse if they cannot themselves make or communicate a decision to divorce.
On the other hand, allowing third parties (guardians, judges) to dissolve marriages based on their assessment of the ward’s “best interest” risks undermining the uniquely personal character of marriage and divorce, and may conflict with the ward’s prior wishes, religious beliefs, or deeply held values.

Blacklock’s opinion squarely chooses to prioritize the latter concern:

He views marriage and divorce as so bound up with personal identity and will that they cannot safely be delegated.
He believes courts should respond to abusive or harmful situations through measures other than divorce (e.g., guardianship control of property, restraining orders, institutional care), preserving the formal marital bond unless and until the spouse can make the decision himself.

Critics may argue that this approach sacrifices protection for vulnerable adults in deference to a rigid conception of volition. Proponents may reply that it preserves the integrity of marriage as a deeply personal institution and prevents the state from unilaterally dissolving marriages for those who cannot speak for themselves.

D. Relationship to No-Fault Divorce and Modern Family Law

The concurrence indirectly engages with broader trends in family law, particularly:

The shift from fault‑based to no‑fault divorce, in which a showing of marital “injury” or misconduct is no longer required.
The increasing treatment of marriage as a somewhat flexible civil status that the state can re‑define (e.g., through changes in eligibility, grounds, and procedures).

Modern courts that move toward guardian-initiated divorces often rely on the idea that:

Once divorce no longer presupposes fault or moral blame, it is easier to analogize it to other serious but representative decisions made by guardians (e.g., medical choices).

Chief Justice Blacklock resists this analogy. For him:

No-fault reform does not change the underlying nature of divorce as a volitional act of a spouse to end a marital union.
Equating divorce with medical consent fails to capture the unique relational and often spiritual dimension of marriage.

In this respect, his concurrence can be read as a call to re‑infuse marital jurisprudence with an older understanding of marriage and divorce, even in a no-fault era.

E. Constitutional Dimensions (Implied but Not Fully Explored)

Although the concurrence does not explicitly discuss constitutional law, the themes he raises intersect with:

Substantive due process, where marriage is recognized as a fundamental right.
Bodily integrity and autonomy, which undergird case law on medical decision-making for incompetent persons.

One might ask whether:

Denying any route to divorce for an incompetent spouse infringes a fundamental right, or
Allowing guardians to divorce on a ward’s behalf without clear statutory authority improperly intrudes on personal autonomy.

Chief Justice Blacklock’s analysis clearly aligns with the latter concern—suggesting that a divorce entered without the spouse’s volitional choice is not a true exercise of that spouse’s fundamental rights at all, but a state-imposed status change.

While the concurrence does not solve these constitutional puzzles, it provides a conceptual lens through which future litigants may frame them.

VI. Complex Concepts and Terminology Explained

A. Guardian, Guardian ad Litem, Next Friend, and Ward

Guardian: A person appointed by a court to manage the personal, medical, and/or financial affairs of another person (the ward) who is legally incapacitated (e.g., due to age, mental incapacity, or disability).
Guardian ad litem: A person appointed specifically to represent the interests of a party in one particular lawsuit or proceeding (often a minor or an incompetent person). This is typically a temporary, litigation-focused role.
Next friend: A procedural device allowing someone to file and prosecute a lawsuit on behalf of a person who cannot sue on their own (often due to minority or incapacity) when a formal guardian has not been appointed.
Ward: The person for whom a guardian or guardian ad litem is appointed—the incompetent or protected individual whose interests are at stake.

The key question in this case is whether any of these representatives may validly exercise the right to seek divorce on behalf of the ward.

B. Best-Interest Standard

The best-interest standard is widely used in guardianship, child custody, and health-care decisions. Under this standard:

The court or guardian asks, “What outcome would most promote the ward’s overall welfare, safety, and well-being?”
The focuses is not necessarily on what the ward would decide if competent, but what seems most beneficial by objective or societal standards.

Chief Justice Blacklock criticizes applying this standard to divorce decisions because:

Divorce is not primarily about objective welfare but about the person’s own will concerning the continuation of a uniquely personal relationship.

C. Substituted Judgment (Contrasted with Best Interest)

Though not explicitly named in the opinion, a related concept often used in other jurisdictions is substituted judgment. Under that approach:

The guardian and court attempt to reconstruct what decision the ward would have made if competent, based on the ward’s known values, past statements, and consistent preferences.

Even under substituted judgment, however, Blacklock’s concern remains:

In his view, a core component of divorce is the present, personal exercise of will, not a hypothetical or reconstructed past will.

D. No-Fault Divorce

Historically, divorce required proof of fault (adultery, cruelty, abandonment, etc.), treating divorce as a response to severe marital wrongs. No-fault divorce regimes:

Allow dissolution of marriage without proving wrongdoing (e.g., on grounds of “insupportability,” “irreconcilable differences,” or “irretrievable breakdown”).
Shift the legal focus from moral blame to the relational reality that the marriage is no longer functioning.

Some modern courts leveraged no-fault divorce to argue that guardians may request divorce because no moral judgment about the spouse’s fault is needed. Blacklock views this as insufficient to erase the inherently volitional nature of the act of divorce itself.

E. Moral Judgment vs. Legal Judgment

Chief Justice Blacklock draws attention to the fact that:

Legal judgments are often built upon underlying moral judgments (about what is right, just, or consonant with human flourishing).
In family law, these moral premises are often unavoidable and deeply contested.
Judges should not pretend that decisions about the nature of marriage and divorce are morally neutral or purely technical.

In this case, the traditional rule is explicitly justified by a moral proposition:

Divorce is “too personal and volitional to be pursued at the pleasure or discretion of a guardian.”

That moral proposition, once institutionalized, becomes a legal rule that courts enforce.

VII. Conclusion: The Significance of the Benavides Concurrence

Chief Justice Blacklock’s concurrence in In the Matter of the Marriage of Carlos Y. Benavides, Jr. and Leticia R. Benavides does not resolve the central doctrinal question it discusses—whether a guardian may obtain a divorce on behalf of an incompetent ward. The Court deliberately leaves that question for another day.

Nevertheless, the concurrence is significant in several ways:

Restatement and Defense of the Traditional Rule
It powerfully restates the traditional American rule that divorce is a uniquely personal and volitional act that cannot be pursued by guardians absent express legislative authorization. It anchors this rule in the nature of marriage itself and in the accumulated authority of numerous state courts over more than a century.
Critique of Modern Judicial Trends
The opinion critiques the “recent and growing trend” of allowing guardian‑initiated divorces based on judges’ best-interest determinations, arguing that this trend changes the very character of marriage and divorce and represents a different moral judgment about marriage.
Clarification of Texas’s Jurisprudential Tension
It highlights the tension between long-standing Texas precedent aligned with the traditional rule and the brief but disruptive 1988 decision in Wahlenmaier, suggesting that the latter may eventually need to be reevaluated.
Invitation for Legislative and Judicial Deliberation
By candidly recognizing the moral dimensions of the question, the concurrence implicitly invites:
- The Legislature to speak clearly if it wishes guardians to have divorce authority, and
- The Court to revisit Wahlenmaier in a case where the issue is unavoidable.
Re-centering the Volitional Nature of Marriage and Divorce
Above all, the concurrence re-centers marriage and divorce in Texas legal discourse as inherently volitional acts rooted in human will, rather than merely civil statuses manipulable by third parties. It insists that when the ability to choose is lost, law reaches its limits and must resort to other tools to protect vulnerable individuals without redefining the institution itself.

Going forward, the Benavides concurrence will likely serve as a key interpretive document in Texas family and guardianship law. It provides a detailed, principled account that future courts and lawmakers will either have to adopt, distinguish, or explicitly reject. In doing so, it ensures that debates over guardian‑initiated divorce in Texas will be conducted with full awareness of the deep legal and moral stakes involved.