The Essential Volitional Nature of Marriage and Divorce and the Limits of Guardian-Initiated Dissolutions in Texas

I. Introduction

This commentary analyzes Chief Justice James D. Blacklock’s concurring opinion in In the Matter of the Marriage of Carlos Y. Benavides, Jr. and Leticia R. Benavides, No. 23‑0463 (Tex. 2025), a case before the Supreme Court of Texas arising from a divorce proceeding involving a spouse who lacked mental capacity.

The central legal question surfaced in the concurrence, though not resolved by the majority, is: may a guardian or similar representative seek a divorce on behalf of a mentally incompetent spouse who cannot personally and intelligently express the will to end the marriage?

The Court’s majority opinion (not reproduced here) resolved the dispute on other grounds and “prudently declines to definitively answer” that question because it was unnecessary to the disposition of the case. Chief Justice Blacklock, joined by Justices Devine and Sullivan, agrees with the judgment and the Court’s decision not to reach the guardian‑divorce issue. But he writes separately to:

reaffirm and defend the traditional common‑law view that both marriage and divorce are inherently volitional and strictly personal decisions; and
signal skepticism toward—if not outright opposition to—allowing guardians to obtain divorces for incompetent wards in the absence of clear legislative authorization.

Although the concurrence does not create binding precedent on the specific question, it is a substantial and carefully reasoned statement about the nature of marriage, the limits of state power in the marital sphere, and the appropriate judicial role in making what are, at bottom, moral judgments about family life. It foreshadows potential future doctrinal developments in Texas regarding guardianship and divorce.

II. Summary of the Concurring Opinion

A. The Unanswered Question

The concurrence centers on a doctrinal and philosophical question that the Court deliberately leaves unresolved:

“The parties disagree on whether a guardian may obtain a divorce on behalf of a ward who lacks the capacity to intelligently seek an end to his marriage. The Court prudently declines to definitively answer that question because answering it turns out to be unnecessary to the disposition of this case.”

Blacklock agrees the Court should not reach that issue in this particular case and joins the Court’s opinion and judgment in full. Nonetheless, he offers “observations for consideration in future cases.”

B. The Traditional Rule: Divorce as a Strictly Personal and Volitional Right

The concurrence endorses what it terms the “traditional view,” articulated in Shenk v. Shenk, 135 N.E.2d 436 (Ohio Ct. App. 1954), and echoed in numerous American cases:

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

Under this traditional view:

The exercise of the will is an essential element of both entering into and ending a marriage.
Because the decision to divorce is “too personal and volitional,” a guardian cannot initiate divorce on behalf of a ward who cannot intelligently form that decision.
Statutes granting general powers to guardians should not be read as implicitly authorizing divorce actions.

Blacklock notes that many jurisdictions historically—and still today—apply this rule, refusing to allow guardian‑initiated divorces absent specific statutory language.

C. The Competing Modern Trend

The concurrence acknowledges that some more recent cases have moved away from the traditional rule, permitting guardians to file for divorce on a ward’s behalf under certain conditions, usually via a “best interests” determination conducted by a court. This trend is described as a:

“recent and growing trend among American courts” against the traditional view.

Blacklock is explicit that this trend does not eliminate moral judgment; it simply replaces the older moral assessment (that divorce is too personal to be pursued by proxy) with its opposite (that divorce may sometimes properly be pursued by proxy).

D. Texas Law: From Traditional View to Wahlenmaier and Beyond

Historically, Texas cases aligned with the traditional rule, denying guardians or next friends the ability to initiate divorces for incompetent spouses. But in 1988, the Texas Supreme Court, in a brief per curiam opinion in Wahlenmaier v. Wahlenmaier, 762 S.W.2d 575 (Tex. 1988), stated without analysis:

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

Blacklock underscores that Wahlenmaier did not grapple with the moral, philosophical, and jurisprudential foundations of the traditional rule. He implies that Wahlenmaier stands in tension with Texas’s earlier case law and the deeper conception of marriage as a personal, volitional union.

In the Benavides case, the Court again avoids resolving the apparent conflict between Wahlenmaier and the traditional rule, and the Texas Family Code is likewise silent on the specific question. This leaves the doctrinal terrain open for future litigation and interpretation.

E. Core Philosophical Claim: Marriage as a Pre‑Legal, Natural Institution

The concurrence anchors its analysis in a robust claim about the nature of marriage:

Marriage “pre‑dates and transcends our law” and “was not created by the law.”
The law acts upon a pre‑existing reality—marriage—rather than creating that reality.
Because marriage is fundamentally a personal, volitional, and often spiritual relationship, courts and guardians cannot substitute their own best‑interest judgments for the absent will of an incompetent spouse.

For Blacklock, if a person becomes permanently unable to decide whether to remain married:

“If he becomes incapable of answering the question, there is nobody else to ask. The question can no longer be answered.”

Courts may still manage related property and personal‑care issues “with prudence and compassion,” but they should not assume the power to decide whether the marriage itself should end.

F. Moral Judgment and the Judicial Role

A major theme of the concurrence is that legal judgments about marriage and divorce inevitably involve moral judgments. Blacklock rejects the idea that courts can neutrally apply purely technical law in this domain:

“When the law delves into intimate moral questions like marriage, divorce, and family life, moral judgments are being made, whether we acknowledge it or not—both by judges and by legislators.”

Thus, both the traditional rule and the modern trend against it rest on competing moral visions. Blacklock openly aligns himself with “the accumulated wisdom of the ages” represented by the traditional rule and expresses suspicion of the newer trend in case law.

III. Precedents Cited and Their Role in the Concurrence

A. Foundational Characterization of Marriage: Lewis v. Ames (Texas, 1875)

The concurrence opens with a quotation from Lewis v. Ames, 44 Tex. 319 (1875):

“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.”

This passage is used to support the central premise that:

marriage as a social and human reality precedes government regulation; and
laws governing marriage and divorce are secondary frameworks built around a natural institution.

Doctrinally, this sets the stage for the argument that courts must first understand the nature of marriage—including its volitional character—before deciding what the law can or should do to affect it.

B. The Classic Statement of the Traditional Rule: Shenk v. Shenk (Ohio, 1954)

Shenk v. Shenk, 135 N.E.2d 436 (Ohio Ct. App. 1954), is quoted for the proposition 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.”

This case exemplifies the majority rule that:

the right to seek a divorce is personal and non‑delegable, and
a guardian cannot act in place of the spouse because the essential element—a voluntary, intelligent choice—is missing.

Shenk thus serves as the leading articulation of the view Blacklock urges Texas to re‑embrace or at least to seriously reconsider.

C. Nationwide Authorities Following the Traditional Rule

Blacklock surveys a long line of decisions from multiple states rejecting guardian‑initiated divorces in the absence of explicit statutory authorization. He relies particularly on a recent synthesis by the Wyoming Supreme Court in Flory v. Flory, 527 P.3d 250 (Wyo. 2023), which restates the core principle:

“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 concurrence then cites a representative list of corroborating cases:

Samis v. Samis, 22 A.3d 444 (Vt. 2011)
In re Marriage of Denowh ex rel. Deck, 78 P.3d 63 (Mont. 2003)
Murray ex rel. Murray v. Murray, 426 S.E.2d 781 (S.C. 1993)
State ex rel. Quear v. Madison Cir. Ct., 99 N.E.2d 254 (Ind. 1951)
Scott v. Scott, 45 So.2d 878 (Fla. 1950)
Phillips v. Phillips, 45 S.E.2d 621 (Ga. 1947)
Mohrmann v. Kob, 51 N.E.2d 921 (N.Y. 1943)
Birdzell v. Birdzell, 6 P. 561 (Kan. 1885)

Across these cases, several themes recur:

Divorce actions are conceptually akin to asserting a personal grievance and require an “intelligent election” by the injured spouse.
Guardians are not the “keepers of conscience” for marital decisions; they manage property and personal care, not the soul of the marital bond.
Legislative silence is interpreted as not authorizing guardians to seek divorce.

D. Modern Counter‑Trend Authorities

On the other side, Blacklock notes decisions reflecting a modern trend that allows some form of guardian‑initiated divorce, generally under a substituted‑judgment or best‑interests test. These include:

Karbin v. Karbin ex rel. Hibler, 977 N.E.2d 154 (Ill. 2012)
In re Marriage of Gannon, 702 P.2d 465 (Wash. 1985) (en banc)
Ruvalcaba ex rel. Stubblefield v. Ruvalcaba, 850 P.2d 674 (Ariz. Ct. App. 1993)

These courts typically reason that:

The decision to divorce, while deeply personal, is not uniquely different from other personal decisions that guardians routinely make or assist with (e.g., medical treatment, life support, sterilization) when the ward is incompetent.
No‑fault divorce and evolving views of marriage weaken the idea that divorce is solely a response to personal moral injury.
Refusing to allow guardian‑initiated divorce could condemn incompetent individuals to remain in harmful or exploitative marriages with no recourse.

Blacklock acknowledges these cases, yet he frames them as expressions of a different moral judgment, not an escape from moral reasoning.

E. Texas Authorities: The Shift from Traditional Doctrine to Wahlenmaier

The concurrence canvasses Texas case law to illustrate the state’s movement:

Traditional alignment with the majority rule:
- Hart v. Hart, 705 S.W.2d 332 (Tex. App.—Austin 1986, writ ref’d n.r.e)
  – Held that “the act of dissolving 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.”
- Dillon v. Dillon, 274 S.W. 217 (Tex. App.—Amarillo 1925, no writ)
  – Concluded an insane plaintiff cannot maintain an action for divorce either personally or through a next friend.
- Skeen v. Skeen, 190 S.W. 1118 (Tex. App.—Dallas 1916, no writ)
  – Interpreted a statute preventing divorce when a spouse is insane as also preventing a next friend from prosecuting divorce for an insane spouse.
The 1988 pivot: Wahlenmaier v. Wahlenmaier:
In Wahlenmaier, the Texas Supreme Court declared, in a short per curiam opinion, that a guardian ad litem or next friend may exercise a mentally ill person’s right to divorce. Crucially, as Blacklock emphasizes:
- No engagement with the historical or philosophical underpinnings of the traditional rule.
- No analysis of whether marriage and divorce are inherently volitional such that guardian substitution is incoherent.

Thus, Texas now stands in a state of partial doctrinal tension: older intermediate appellate cases and the broader traditional rule suggest guardians cannot seek divorce, while Wahlenmaier indicates they can, without offering the deeper reasoning that would resolve the conflict.

IV. Legal Reasoning and Jurisprudential Themes

A. The Volitional Core of Marriage and Divorce

Blacklock’s reasoning begins from a definitional premise: marriage and divorce are, by their nature, expressions of the will of the spouses. This has several doctrinal consequences:

Entering a marriage requires mutual consent; it is not something that can be imposed on persons against their will.
Ending a marriage by divorce likewise requires an intentional, voluntary act by at least one spouse.
Where that will is absent—because the spouse cannot intelligently form or express it—the legal process cannot legitimately simulate it through another’s decision.

In Blacklock’s words:

“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 the critical move in his reasoning: it is not merely that it would be unwise or unjust for guardians to seek divorces; rather, it may be that, conceptually, the act of divorce cannot exist without the spouse’s personal will.

B. Natural Law Conception of Marriage vs. Purely Statutory Conception

The concurrence contrasts two judicial perspectives:

Marriage as a civil status created by statute:
Judges with this view may see marriage as a legal construct defined and bounded by the Texas Family Code. If so, they might:
- see no conceptual barrier to allowing a guardian—already empowered to make critical decisions for a ward—to file for divorce; and
- focus largely on statutory interpretation and policy considerations such as best interests and public welfare.
Marriage as a pre‑legal, natural institution:
Judges with this view, which Blacklock embraces, see marriage as:
- a “unique, natural relationship” that law recognizes but does not create;
- deeply intertwined with moral and spiritual convictions; and
- anchored in the spouses’ personal wills.

This second perspective leads to skepticism about any state‑driven or third‑party determination of whether a person “should” be married. The state can regulate incidents of marriage, but it cannot legitimately decide for an incompetent person whether he or she is or should remain married.

C. The Limits of the “Best Interests” Standard in Marital Status Decisions

Modern cases often justify guardian‑initiated divorce by having courts determine whether dissolving the marriage would be in the ward’s “best interests.” Blacklock directly challenges the applicability of that standard here:

“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.”

In his view:

Best‑interest analysis is well suited to many decisions (medical care, financial management, living arrangements), where an objective or substituted assessment of benefit can sensibly be made.
But for questions whose essence is subjective will—like the decision to marry or remain married—best‑interest analysis is a category error: it answers a different question than the one that defines the institution.

D. Moral Judgment in Judicial Decision‑Making

Blacklock insists that courts cannot avoid making moral judgments when deciding questions about marriage and divorce. His argument is twofold:

Descriptive claim: Judges and legislators in fact make moral judgments when legislating or adjudicating family law; these judgments may be explicit or hidden behind technical language, but they are always present.
Normative claim: It is better and more intellectually honest for courts to acknowledge and reason through these moral dimensions openly, rather than pretending they do not exist.

The concurrence therefore criticizes decisions that, in his view, fail to confront the moral and philosophical stakes of altering the traditional rule. Wahlenmaier is placed in this category: it altered Texas practice on a foundational issue without explaining or even acknowledging the underlying shift in moral understanding.

E. Deference to the Legislature When It Speaks Clearly

Blacklock also acknowledges that if a legislature explicitly authorizes guardian‑initiated divorce, that is itself a moral and policy judgment by the elected branch:

“Of course, if a legislature specifically codifies the power of guardians to obtain divorces for incompetent wards, then the legislators, not the judges, have made the relevant moral judgment, and the judges are likely bound to follow it.”

However, he emphasizes that:

Texas’s Family Code is currently silent on that issue; and
in other states where guardian‑initiated divorce has expanded, it is often judges—not legislatures—who drove the change.

This supports his conclusion that absent explicit statutory authorization, courts should resist reading general guardianship powers to include the power to terminate marriages.

V. Impact and Prospective Significance

A. Doctrinal Status in Texas After Benavides

The concurrence does not overrule Wahlenmaier and does not supply a binding rule about whether guardians may file for divorce in Texas. Several propositions, however, are now clearer:

The question is unresolved as a matter of fully reasoned Supreme Court doctrine.
Wahlenmaier exists but rests on a cursory statement, without analysis, and sits in tension with both historical Texas authority and the philosophical premises articulated in this concurrence.
At least three members of the Court (Blacklock, Devine, Sullivan) are sympathetic to the traditional rule that strongly disfavors guardian‑initiated divorces, absent a clear legislative directive.

Lower Texas courts, when faced with similar issues, may therefore:

treat Wahlenmaier as a narrow decision, limited to its facts;
hesitate to extend guardian‑initiated divorce beyond the precise context of that case; and
anticipate further clarification or possible doctrinal recalibration by the Supreme Court in a future case squarely presenting the issue.

B. Signals to the Texas Legislature

The opinion implicitly invites legislative action. Since the Family Code does not speak to guardian‑initiated divorce, the Legislature could:

codify the traditional rule, expressly prohibiting guardians from seeking divorce for incompetent spouses; or
adopt a controlled version of the modern trend, allowing guardian‑initiated divorce under specified safeguards (e.g., clear and convincing evidence of prior expressed wishes, judicial findings of abuse, conflict‑of‑interest safeguards, etc.).

Any such statute would be a clear moral and policy choice, which the Court, by Blacklock’s lights, would then be obliged to implement.

C. Influence on Future Litigation Strategy

Lawyers litigating cases involving:

incompetent spouses,
guardianship arrangements, or
disputed attempts to terminate a marriage through a representative

will likely make strategic use of this concurrence. It provides:

a roadmap for arguing that guardians cannot initiate divorce absent express statutory authority;
a detailed articulation of the philosophical underpinnings of that view, appealing to judges inclined toward a natural‑law or traditionalist conception of marriage; and
a strong basis for challenging any expansive reading of general guardianship powers as including the power to dissolve marriages.

D. Broader Jurisprudential Impact

Beyond guardianship and divorce, the concurrence’s insistence on acknowledging the moral content of legal judgments could influence how Texas courts:

approach other intimate family‑law questions (e.g., parental rights terminations, assisted reproductive technology, end‑of‑life decisions);
frame their reasoning when statutes are silent or ambiguous about morally charged issues; and
understand the boundaries between statutory interpretation and judicial moral reasoning.

It also contributes to a national conversation in family law between:

more traditional, status‑oriented views of marriage as a moral union with limited state‑alterable features; and
more modern, autonomy‑ and welfare‑oriented views, where marriage is treated more like a bundle of rights and obligations that can be managed or even redefined through state processes and proxies.

VI. Complex Concepts Simplified

A. “Volitional” and “Strictly Personal” Rights

When courts say that the right to divorce is “volitional” and “strictly personal,” they mean:

The right is grounded in an individual’s own will and personal judgment.
It is not like property rights or routine contractual rights that others can exercise on someone’s behalf.
No one else can validly choose for you whether you wish to remain in a marriage, because the meaning of the choice is bound up with your own intentions and commitments.

B. Guardianship and the “Best Interests” Standard

A guardian is someone appointed by a court to make decisions for a person who lacks capacity (the ward). Guardians commonly make decisions about:

medical treatment,
financial management,
where the ward will live, and
day‑to‑day personal affairs.

To guide these decisions, courts often apply the best interests standard:

The guardian and court ask: “What decision would most likely promote the ward’s overall well‑being, safety, health, and welfare?”
This is sometimes supplemented by a “substituted judgment” test: “What would the ward have chosen if competent, based on known values and past statements?”

Blacklock’s key point is that, while best‑interests analysis is appropriate for many types of decisions, it may not be legitimate for deciding whether a marriage itself should continue or end, because that question is inherently about the spouse’s own will.

C. “Natural” vs. “Artificial” Aspects of Marriage

Drawing from Lewis v. Ames, the opinion distinguishes:

Natural aspect:
The human reality of a man and woman (or, in modern law, two spouses) forming a lifelong union, with emotional, social, and often spiritual dimensions. This is said to exist independently of government.
Artificial aspect:
The legal rules the state attaches to marriage: registration requirements, grounds for divorce, property regimes, procedural rules, etc. These are “the work of government.”

The concurrence’s core claim is that the law’s artificial framework must remain faithful to, and cannot redefine, the natural essence of marriage as a union founded in the freely given will of the parties.

D. The Role of Moral Judgment in Law

A moral judgment in this context means a value‑laden assessment about what is right, good, or fitting in human relationships. Blacklock argues:

Deciding whether divorce can be initiated by a guardian is not just a technical question about procedural capacity; it is a decision about the proper character of marriage and divorce.
Both the traditional rule and the modern trend reflect different answers to the moral question: “Is divorce so personal that no one else can rightly choose it for you?”
Candidly recognizing the moral dimension leads to more transparent and accountable judicial reasoning.

VII. Conclusion

Chief Justice Blacklock’s concurrence in In the Matter of the Marriage of Carlos Y. Benavides, Jr. and Leticia R. Benavides does not settle the doctrinal fate of guardian‑initiated divorce in Texas. The Court’s majority deliberately leaves that question open, and the Texas Family Code remains silent. The 1988 per curiam decision in Wahlenmaier still stands but is identified as analytically thin and in tension with an older line of Texas and national authority.

Nonetheless, the concurrence is highly significant. It:

Reaffirms the traditional rule that marriage and divorce are inherently volitional, strictly personal decisions that cannot be exercised by guardians absent clear legislative authorization.
Articulates a natural‑law conception of marriage as a pre‑legal, enduring institution that the law recognizes and respects, rather than creates and freely manipulates.
Critiques the use of best‑interests analysis for decisions whose nature is defined by the individual’s own will, such as marrying or divorcing.
Calls attention to the inevitable moral content of judicial decision‑making in the family‑law sphere and urges judges to own that responsibility explicitly.
Signals a potential future shift in Texas doctrine away from the modern trend that allows guardian‑initiated divorces, and invites both lawmakers and courts to reconsider the underlying premises of earlier decisions.

In choosing, as he puts it, the “accumulated wisdom of the ages” over the “recent and growing trend among American courts,” Blacklock provides a clear intellectual framework for those who would resist expanding the power of guardians and judges to end marriages without the direct, intelligent, and voluntary decision of at least one spouse. Whether Texas ultimately adopts that framework as binding law will likely depend on future cases and, possibly, legislative action. For now, this concurrence stands as a powerful statement of principle about the limits of state power over the most intimate of human relationships.