How to Divorce a Mentally Unstable Spouse in Florida

By Cindy Chung

side profile of a young man arguing with a young woman

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A mentally unstable spouse can significantly affect a marriage, and the couple may eventually decide to divorce. Filing for divorce from a mentally unstable and unpredictable person may create additional legal issues as well as safety concerns. If a volatile husband or wife threatens the spouse's safety, domestic violence laws may offer some protection. The spouse filing for divorce should understand the protections provided by Florida state laws regarding domestic violence, stalking, child custody and financial issues.

Domestic Violence Laws

If a husband or wife commits physical violence or threatens to harm a spouse, Florida domestic violence laws offer protection to the victim. Someone who fears a mentally unstable spouse may be able to request an Injunction for Protection through a Florida circuit court at any time before, during or after a divorce case. The court can issue a temporary injunction to cover the period of time before the scheduled hearing when the court will hear evidence and decide whether to grant a final injunction for a longer period of time. A domestic violence injunction may include a no-contact order, require child or spousal support payments, order the unstable spouse to participate in drug or alcohol testing, and allow the abused spouse to remain in the family home during a pending divorce case.

Criminal Stalking

If a mentally unstable husband or wife follows, watches, harasses or cyberstalks a spouse who plans to file for divorce or who has already filed for divorce, a Florida prosecutor may start a criminal action. While a domestic violence injunction is a civil matter in circuit court, the state prosecutes stalking and other offenses through the criminal courts. Criminal stalking of a spouse or child is a felony in Florida. During a divorce case, the court may consider criminal acts committed against a spouse when determining legal issues such as child custody.

General Divorce Procedures

The procedures to file for divorce from a mentally unstable spouse are generally the same as the procedures required for all divorces in Florida. The spouse requesting the divorce must file a petition and summons for a dissolution of marriage. The opposing party must receive a copy of the paperwork through service of process. Service may occur through a private process server or the sheriff's office in the county where the opposing party lives. A spouse with safety concerns regarding the other party's reaction to the divorce may want to have the sheriff's office complete the service requirements.

Financial Concerns

A husband or wife may worry about requesting financial support from a mentally unstable spouse during a pending divorce case or as the final terms of the divorce are made known. Florida child support, property division and alimony guidelines and laws determine each spouse's rights in the event of a divorce. A court order for support allows a judge to enforce support payments even if a mentally unstable or angry spouse refuses to pay. In addition, in cases involving domestic violence, the Injunction for Protection may require the other spouse to pay temporary child support or alimony while the spouses have a pending divorce case.

Custody Issues

Spouses who have children together likely need to resolve custody issues, known as parenting responsibilities and time-sharing in Florida, as part of their divorce. The court must review many factors in state law and cannot issue a custody order that appears to harm to the child. In particular, the court must consider incidents of domestic violence or child abuse; in these situations, the court may be less likely to award shared custody between the parents and may impose requirements to protect a child during visits with the volatile spouse. If an angry spouse refuses to comply with a custody order, the other parent may request the children's return through an ex parte order which does not permit a response from the spouse in violation of the order.