Specialty tag(s): Divorce, Mental Health and Addiction in Divorce
Aimee Pingenot Key | July 15, 2024
If your marriage faced problems due to mental health issues, those same issues will most likely be a significant factor during divorce and the division of property. This is especially true for families with children who have custody concerns.
The mental illness of either party will certainly have an impact on a divorce concerning property division. Under Texas Family Code Section 7.001, a “just and right division” of the community estate is mandated during a divorce. For many families, this results in an equal division of assets and debts. However, there are circumstances where the court may allocate a disproportionate share of the community estate. The Texas Supreme Court outlined specific factors for such a disproportionate division in the case of Murff v. Murff. The court provided several considerations for making a just and right division of community property and debts, including the disparity of incomes or earning capacities between the spouses; the capacities and abilities of each spouse; the benefits that the non-fault party would have gained from continuing the marriage; the business opportunities available to the spouses; the education levels of the spouses; their relative physical and financial conditions; any separate estates they may have; the nature of the property to be divided; fault in the dissolution of the marriage (such as adultery, cruel treatment, a spouse’s felony conviction and imprisonment for at least a year, abandonment for a year or more, living apart for at least three years, or a spouse’s confinement to a mental hospital for at least a year); and attorney’s fees. A party with a mental health issue that can be shown to prevent them from working may also have grounds to argue for a disproportionate share of the estate.
A child’s best interests are the central focus of a judge’s decision when determining the possession and rights of a parent to a child. Several factors are used to determine what is in the child’s best interests, including the ability of each parent to provide an appropriate environment for the child and to have the ability to parent the child with a reasonable level of competence. In a custody dispute, if one parent has a mental illness, the court will assess whether that mental illness impacts their fitness as a parent. If it does, that parent may be awarded limited visitation rights or even denied access to the child until they get help and become fit to parent. When a court decides on a custody dispute, they generally do so with the ultimate goal of allowing the child to continue their relationship with both parents. The court may award:
Each parent’s capacity to create a safe environment for children as well as their emotional stability will be considered by a judge. If there is a spouse with mental illness in a divorce, the judge may consider it as a factor when deciding to prohibit, restrict, or limit custody rights, according to Texas law. Mental health issues that are minor and easily managed most likely will not affect custody. However, more serious mental health issues will. For example, in In Re Marriage of Swim, custody limitations were upheld by the court due to the father relapsing with illegal drugs and failing to continue the treatment for his bipolar disorder. However, in many cases, a parent can have their visitation restrictions lifted by demonstrating emotional stability and a continued commitment to mental health treatment.
Divorce cannot be avoided by claiming mental illness. In Wahlenmaier v. Wahlenmaier, the court held that mental illness does not preclude a divorce and a mentally ill spouse may still be represented by a guardian ad litem.
It can be. Each divorce petition must include a declaration of the grounds, or reason for the dissolution. In Texas, divorces can be filed under fault or no-fault grounds. Divorces that use no-fault grounds don’t need a particular reason other than insupportability, signifying that the marriage is beyond repair with no chance of reconciliation (also referred to as “irreconcilable differences”). Texas law permits fault-based divorces for reasons such as a felony conviction, adultery, cruelty, abandonment, or confinement in a mental hospital. Using confinement in a mental hospital as grounds for a divorce requires that the ill spouse be hospitalized for at least three years and that “the mental disorder is of such a degree and nature that adjustment is unlikely or that, if adjustment occurs, relapse is probable.” In these cases, the Texas court will appoint an attorney ad litem to represent the hospitalized spouse during the divorce proceedings. The attorney ad litem may make decisions for the mentally ill spouse and will protect their client’s legal interests during the divorce proceedings.
It is imperative to first be honest and upfront about your mental illness in the divorce and not attempt to hide or downplay any known mental health issues. Often, when dealing with divorce and mental illness, psychometric testing is ordered and any diagnosis or treatment will need to be divulged. As such, being forthcoming is important so that the court or a potential custody evaluator does not perceive you to be dishonest or out of touch with your mental health concerns. The most important thing you can do regarding mental illness and divorce is to seek consistent treatment and support for your mental health issues. A judge would rather see that you are routinely meeting with a counselor and/or psychiatrist to address your issues.
If you have a spouse with mental illness in a divorce who has had a history or pattern of mental health issues and shares custody of your child or children, it is important to keep track of your observations of your former spouse even after the divorce. Written observations, including the dates and times of unusual behavior (such as showing up late or missing visits) or unusual communications (rambling emails or texts) may help support a modification of the possession schedule. If your spouse has said or done things that are concerning in front of your children, having your child talk to a trusted counselor is a good way to both document what has happened and provide an outlet for your child to process what they observed and experienced. Additionally, if your former spouse has said or done anything in front of third parties such as other parents, teachers, or coaches, keep track of the date, time, and details of the event so that this may be shared with your attorney to potentially modify the possession schedule.
In a public divorce, mental illness issues are hard to keep quiet. As such, maintaining privacy during divorce when mental health issues are present is a major concern for many families. A party’s job security or their relationship with their children is often the primary reason parties don’t want to air their issues in open court with traditional litigation. If this is a concern or goal in the divorce process, it might be wise to consider the collaborative law process as a means to handle the divorce. In the collaborative process, both parties contract with their attorneys to work through the issues in their divorce, including child custody, with a team consisting of their attorneys, a financially neutral professional, and a mental health professional instead of going to court. By using the collaborative method, custody and financial issues are addressed individually but also privately, outside of a traditional courtroom setting. This option is often preferable for families dealing with mental health issues.
With a forward-thinking approach and a compassionate touch, Aimee Pingenot Key dedicates herself to helping clients navigate the complexities of family law. Her goal is to help clients define their objectives and achieve resolutions, even in the most contentious cases. Aimee’s master’s degree in social work equips her with a deep understanding of intricate custody issues, allowing her to collaborate effectively with clients and mental health professionals to safeguard her clients’ interests. Her unwavering compassion ensures that she remains a dedicated advocate for every family she assists, and she employs the collaborative process and custom contractual agreements to help clients address property and custody disputes constructively. As a partner at Goranson Bain Ausley, Aimee is board-certified in family law and has been recognized in The Best Lawyers in America.
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