Divorcing a Mentally Ill Spouse

Divorce is always a difficult process, and navigating the financial and legal tangle is even harder if you’re divorcing someone with a mental illness. 

Nearly one in five adults in the United States is diagnosed with a mental illness, and more and more elderly couples are divorcing due to increasingly common conditions like dementia. Mental illness in the context of divorce is an increasingly widespread problem which may not be addressed by an inexperienced attorney. 

In the post below, we discuss mental health issues related to capacity, such as dementia, brian injuries, temporary issues from a stroke or mental health issues that impair a person’s ability to function day to day.  Please check out our series of posts regarding how divorcing a spouse with mental health issues such as narcissism, bi-polar disorder, substance abuse issues or abusive tendencies for information about these topics. 

What Is Considered Incapacity?

In California, most marriages end due to irreconcilable difference – the inability to get along as a married couple. However, a much less frequent basis for a divorce can be a spouse’s incapacity due to mental health issues. 

Incapacity arises when a spouse can no longer make day-to-day decision regarding their own health or welfare, cannot make decisions regarding their own health, finances, or, in some instances, their own living situation. Often, this incapacity results in the spouse’s inability to understand or communicate with others, issues recognizing familiar faces, inability to control mood or reactions to events which may cause the mentally ill spouse to act irrationally or dangerously toward themselves or others.

The most common bases for incapacity arise where there is an Alzeimers or dementia diagnosis, or the spouse suffers some sort of psychotic break. Often, a spouse has been hospitalized, either voluntarily or involuntarily due to their mental health issues. 

Whether one spouse has the capacity to engage in a divorce is not determined by the spouse seeking a divorce, but is rather a legal determination made by the court. 

How Does Incapacity Impact A Divorce? 

The main issue around divorcing an incapable spouse is the inability for that spouse to enter into a complex contract to end a marriage, or to understand the issues that need to be resolved. To make sure a partner lacking capacity isn’t taken advantage of during divorce proceedings, the mentally ill spouse is generally appointed a guardian ad litem or a conservator who will represent their interests in court and act on their behalf.  Often, the appointed guardian ad litem or conservator is a friend or other family member who is familiar with the situation and has some understanding of the issues involved, but a stranger may also be appointed if the court determines this is the best course of action.  

Common Situations 

Often, a spouse is seeking a divorce to protect the community assets or has reached a point where the spouse is no longer capable of interacting with their family in a meaningful way. In our experience, divorces based on the incapacity of a spouse are typically very amicable but because of the incapacity of the spouse, are often more difficult to finalize because of the need to involve someone who can act on the mentally ill spouse’s behalf. 

Spousal Support

If one spouse’s mental illness is so debilitating that they are incapable of working to support themselves, that might mean that they will receive more alimony or a greater share of marital assets.  Often, however, the spousal support and division of assets are structured through a special needs trust, or specifically earmarked to support the mentally ill spouse in a residential placement facility. 

Hart Ginney – Divorce and Mental Illness

If you are divorcing a mentally ill spouse, it’s important that you’re represented by someone who understands the difficulties that arise from mental health problems, both legal and interpersonal. Cases involving an incapacitated spouse will involve some level of involvement from a guardian ad litem or a conservatorship. This guardian ad litem or conservator will need to interact with the attorney or attorneys involved in the divorce. THe issues involved can be extremely complicated to navigate; we are always happy to set up a time to walk you through the potential issues at any stage of this type of divorce. 

Contact Hart Ginney today to set up a consultation to determine how we can best help you. 

1939 Harrison Street, Suite 210
Oakland, CA 94612

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