There are no specific statutes in Colorado law that allow for the divorce of a mentally incompetent spouse, although there are legal provisions which allow an annulment on such grounds. Colorado courts are authorized to declare a marriage annulled and invalid under certain delineated circumstances. You could, however, seek a divorce on general grounds that the marriage is irretrievably broken. In such cases, the court may order the parties to meet with a marriage counselor.
Consent to Divorce
Obtaining a divorce from a spouse who is institutionalized for a mental illness is allowed in Colorado; however, there could be legal complications in obtaining the consent of the institutionalized spouse. For your protection, you should insist on obtaining a statement from a psychiatrist at the mental health facility stating your spouse has sufficient mental capacity to understand the nature and effects of the divorce procedure as well as the legal documents he is signing. Otherwise, any consent may be deemed invalid.
Basic Colorado Divorce Laws Apply
Generally, Colorado’s procedures for obtaining a divorce are the same in cases where a spouse is institutionalized as the procedures for any other divorce action. The primary difference is that you will need to show the institutionalization has resulted in an “irretrievable breakdown” of the marriage.
In most cases where there has been a mental health commitment proceeding, proving irretrievable breakdown may be relatively easy to do. However, just because a spouse has been court-ordered to receive treatment does not mean a court will automatically find irretrievable breakdown of the marriage in a divorce proceeding. For example, a civil commitment may be ordered for the purpose of providing drug and alcohol rehabilitation to a spouse. Courts may be reluctant to find irretrievable breakdown in cases where the prospects of recovery are high. Additional proof of irretrievable breakdown may be necessary.
The Annulment Alternative
Colorado statutes allow for the grant of an annulment in cases where, at the time of entering into the marriage, one spouse was legally and mentally incompetent to the extent he could not understand the nature and effect of the marriage ceremony. The longer the length of marriage, the more reluctant a court may be to grant an annulment on such grounds. Seeking an annulment may be preferable, however, if you want to try to avoid paying spousal support to the institutionalized spouse’s estate. In a divorce proceeding, the court could order payment of such support, as well as order that a spouse provide health insurance coverage for the spouse who is in a mental health facility. Still, the court has more power to grant equitable relief in the case of annulment than in a divorce, so avoiding spousal support obligations is not guaranteed simply by obtaining an annulment. It is best to seek the advice of an attorney to determine whether you should seek a divorce or annulment.