Can You Give a Power of Attorney to Someone to File for a Divorce?
By Beverly Bird
Powers of attorney are not one-size-fits-all documents. Their terms are subject to the wishes of the person granting the power, as well as individual state laws. This is especially true when it comes to the highly sensitive and personal matter of divorce. Technically, someone holding power of attorney for you can initiate a lawsuit on your behalf, but states take a dim view of this if the lawsuit is a petition for divorce.
Nature of a POA
Although powers of attorney are individualized documents, they follow some common rules. The person granting power is the principal and the person entrusted with that power is the agent, sometimes called an attorney-in-fact. Exactly what the agent has authority to do is up to the principal; he can make his POA's powers as broad or as narrow as he likes. General POAs don't place many, if any, restrictions on the agent. Special or limited POAs allow the agent to do only specific things. An agent typically has the power to take care of personal business on behalf of the principal within these frameworks.
Although it can vary by state law, a POA typically cannot give an agent the power to make personal decisions for the principal. For example, Washington does not allow an agent to vote for the principal or create or alter a will on his behalf. California prohibits an agent from signing a will or a marriage license. Powers of attorney are generally limited to personal business, not life-changing decisions or events. In Tennessee, your POA can allow your agent to file for divorce on your behalf if the document states this specifically. Without this language, it is not possible.
Typically, your agent will not have the authority to file for divorce on your behalf unless you're incapacitated, and your POA would have to be durable to allow this. A durable POA includes specific language stating that you intend your agent's powers to continue in the event you become incapacitated. Alternatively, in some states, you can give a springing power of attorney, one that does not go into effect unless or until you become incapacitated. Without this language, your POA would terminate with your incapacitation; your agent would have no powers at all. With a durable power of attorney, your agent typically becomes your conservator when a court determines that you're incapacitated. As your conservator, he might be able to file for divorce, but it's unlikely that a court would accept a divorce complaint or petition signed by your agent without a court hearing to either grant or deny such authority.
Granting someone a power of attorney doesn't mean you can't continue to take care of your own personal matters as long as you're able to. Provided you are, it only makes sense to sign and file your own divorce papers, or have an attorney take care of the matter for you. If your spouse is your agent and you're contemplating a divorce, it is usually a good idea to change this arrangement and revoke the POA. Unless you do so, your spouse would have the power to move, sell or buy assets in your name, and if you're divorcing her, she might not act in your best interests. If you've named your spouse as your agent, most states automatically void your POA when your divorce is final, or when one of you files for divorce or legal separation.
- Columbia Legal Services: Questions and Answers on Powers of Attorney (PDF)
- Howard and Mobley: Conservator Allowed to File for Divorce on Behalf of Ward
- Presidio of Monterey: Powers of Attorney Questions and Answers (PDF)
- Phillips, Morrison, Johnson and Ferrell: Automatic Termination of Power of Attorney in Divorce
- NJ.com: Power of Attorney and Divorce
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.