Baker Act & Divorce

By Erika Johansen

Updated April 01, 2020

If you observe someone acting in a way that makes you think she might be dangerous to others, Florida's Baker Act allows you to petition a court to order an involuntary psychiatric examination. One of the grounds for a divorce in Florida is three years of mental incapacity. A Baker Act order does not provide grounds for divorce based on incapacity, but it could constitute a first step in that direction.

The Baker Act

The Florida Mental Health Act of 1971, known as the "Baker Act" due to its sponsoring state representative, specifies the process by which the mentally ill can or must undergo psychiatric evaluation. Under the act, someone over age 18 (or age 17, with a guardian's permission) can voluntarily present themselves for psychiatric examination. However, the act also allows an outside observer, who notes symptoms of mental illness, to ask a court to order an examination without the subject's permission.

Consequences of Examination

Patients admitted voluntarily may request to leave at any time, while involuntary patients can be held for examination for up to 72 hours. After this 72-hour period, however, the patient must be released unless the patient is moved into outpatient treatment; the patient voluntarily agrees to remain in the facility for further examination or treatment; or, the psychiatric facility petitions a court to have the patient involuntarily committed. In the case of the facility petitioning a court, the commitment hearing must occur within five days of the petition.

Baker Act Divorce

To obtain a divorce in Florida based on your spouse's mental incapacity, you must be able to prove that the incapacity has lasted for the past three years. But in Florida, the term "mental incapacity" means that your spouse has been legally declared incapable via a hearing and court ruling. Because the Baker Act only allows for a 72-hour involuntary psychiatric examination, the fact that a court has granted your Baker Act petition is not sufficient to show incapacity. However, the Baker Act petition may start the process. If the court orders an involuntary examination and that examination then leads to a commitment hearing and a legal declaration of mental incapacity that lasts three years, this could theoretically provide grounds for a Florida divorce.

Custody and Maintenance

Declaration of mental incapacity resulting from the Baker Act may also impact a divorce decree in terms of custody and maintenance awards. Florida law assumes that parents should share custody and responsibility for minor children, but will abridge that custody when it's in the child's best interests, and one of the criteria the court evaluates is the mental health of the parent. The court may also evaluate the health of each spouse in deciding how much spousal support is owed. Poor mental health may diminish the earning capacity of a spouse, lowering his own support payments (or requiring more support for him from his ex). On the other hand, if a mentally ill spouse qualifies for state aid, such as disability payments, this may increase his income and thus the amount he must pay in spousal support.