Even under the best of circumstances—when both spouses are physically and mentally healthy, financially stable, and on the same page about the split—divorce is a painful and grueling process, full of outsized emotions and overwhelming logistics.
When one of the partners is suffering from mental illness, there are extra layers of complexity and special—often highly sensitive—considerations.
If you’re married to someone with severe mental illness, you may feel that their condition has created insurmountable challenges for you as a couple and that the stress has become too much to bear. You may have faced fears that your spouse was a danger to themselves or you or your child. These mental health-related problems may play a major role in your decision to end the marriage—and yet you may worry about how those very problems will affect the divorce process.
Although California law provides a way to file for divorce based on “incurable insanity,” it is rarely used. California is a no-fault divorce state, which means that you do not need to prove any cause or reason for wanting to end the marriage. If one or both partners want out, they can get a divorce. Therefore, the court will not consider a spouse’s mental illness when granting the divorce itself—it is neither “grounds” for divorce nor can it prevent you from obtaining one.
However, a spouse’s mental illness can significantly impact important decisions surrounding your divorce, particularly child custody and spousal/child support, depending on how the mental health condition affects that person’s ability to work and support themselves, manage finances, and care for your shared children.
Child Custody. When parents, for whatever reasons, cannot agree on how to share parenting time, the court steps in. In decisions about custody and visitation, California courts must always act in the child’s best interests. This typically means ensuring that the child maintains an ongoing, consistent, and meaningful relationship with both parents, usually through shared custody. Mental health challenges do not automatically disqualify a parent from gaining custody. But in cases where one parent’s mental illness is a major factor, the court will consider their ability to provide a safe and stable environment for the child. Severe depression, anxiety, or mood disorders that affect the person’s ability to care for themselves or others and perform various responsibilities may influence the judge’s decisions about where the children live and how parenting time is allocated. The judge may grant primary custody to the other parent, and if there are genuinely serious safety concerns, may also order supervised visitation. A history of substance abuse or violent or reckless behavior related to mental illness could even result in revocation of parental rights.
Spousal Support. The court bases spousal support decisions on numerous factors laid out in the California Family Code, including each partner’s earning capacity. So, while the court does not directly consider mental health in awarding spousal support if mental illness affects one spouse’s ability to hold a job, earn an income, or provide for their own needs and the needs of the children, that can impact how support is calculated.
Child support. Parents are legally required to provide for their children; a mental health diagnosis does not negate that duty. However, when mental health issues limit the earning capacity of one parent (custodial or non-custodial)—and therefore, their ability to financially provide for children—the parents’ respective financial obligations may be adjusted accordingly.
Other important concerns.
- You should be prepared for the ways that mental health conditions can make the process even rockier than in an ordinary divorce. For example, high-conflict and emotionally charged situations may be more challenging and stressful for them to navigate; certain disorders can cause an individual to behave unreasonably or erratically. If your spouse is severely mentally ill, incapacitated, or institutionalized, the court may appoint a guardian to act on their behalf.
- If your spouse’s mental condition has resulted in domestic violence or threats of harm to you or other members of your family, it is crucial, above all, that you get to safety immediately. Then, you may need to petition the court for a protective order (restraining order)—an experienced lawyer can help.
- It’s critical that your attorney is made aware of any mental health condition that either party has been diagnosed with and any medications they are taking for treatment. Both parties need to be straightforward and honest. But it’s also important to know that if you have serious concerns about your husband or wife’s mental health, you have the right to request that they undergo an evaluation by a clinical psychologist, licensed therapist, or physician.
If you’re going through a divorce that involves a spouse who is suffering from mental health problems, it’s crucial to work with an attorney who understands the full range of impacts the illness can have on your case. This is a complex and sensitive area of the law. The skilled and caring attorneys at SFLG are experienced in all aspects of family law, including how mental health disorders affect the dissolution process.
By Debra Schoenberg
