How to File for Divorce When Your Spouse Is Mentally Ill
By Beverly Bird
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In many states, your spouse's insanity is a ground for divorce. But being certifiably insane is a far cry from being mentally unstable, and insanity is usually time-consuming and expensive to prove to the court. In most states, you can still use a no-fault option if your spouse is mentally ill, but you’ll probably have to take some extra steps toward divorce to accommodate his condition.
Research your state’s available grounds for divorce to determine how you can file based on your spouse’s mental condition. In some states, an insanity ground may be prohibitive. Some jurisdictions require that your spouse remain institutionalized for up to five years before you can file. Others require a doctor’s certification that your spouse’s mental condition is not likely to improve. If your situation doesn’t qualify for your state’s guidelines, or if it would be an uphill battle for you to prove his mental incapacity to the court, confer with an attorney to find out if you can use another ground instead.
Meet with your spouse’s family members. Find out if any of them would be willing to take on the responsibility of acting as his conservator or guardian. Depending on the severity of your spouse’s mental state and how capable he is of making rational decisions for himself, the court may require that he have someone to legally deal with the details of the divorce for him.
File a petition or complaint for divorce as you normally would, if your spouse were of sound mind. Use the ground you’ve decided on after consulting with an attorney. Serve it on your spouse according to your state's laws, or on the director of the medical facility if he's institutionalized. If one of his family members has agreed to be his guardian, serve a copy on that individual as well.
Petition the court to appoint a guardian ad litem for your spouse if no family member is willing to take on the responsibility. This will generally involve filing a motion under the docket number of your complaint for divorce. Serve a copy of your motion on your spouse so he can attend the hearing, if he’s not living in an institution. If he is institutionalized, serve a copy on the director of the facility.
Attend the hearing for your motion. If you have any medical records or doctor’s reports for your spouse, make copies and take them with you. The judge will either decide that your spouse is competent enough to handle the divorce on his own, or he will appoint a guardian ad litem for him. A guardian ad litem is someone appointed by the court, often an attorney, to look out for your spouse’s best interests. In some states, the court will appoint a guardian ad litem even if one of your spouse’s family members is also acting as his guardian. After this point, your divorce should proceed along normal channels.
If you file on grounds of insanity or mental illness, and if your spouse is not capable of working, your state might require you to pay for his support permanently after your divorce. There could be a great deal at stake, depending on the severity of your spouse’s illness, so speak with an attorney before you begin your divorce proceedings and bring the situation to the attention of the court.
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.