Can You Divorce if You Are Mentally Unstable?

By Wayne Thomas

It is of little surprise that a married couple would decide to get divorced over personality differences. Spouses may even refer to each other as "insane" throughout the process. However, filing for divorce on the basis of incurable insanity requires much more than a mere personality flaw and, as such, should not be confused with mere mental instability. The evidence required is substantial and the role of guardians in assisting the ill spouse varies greatly from state to state.

Incurable Insanity

In many states that retain traditional fault grounds, incurable insanity is often a basis for divorce. Mississippi, for example, will grant a divorce if it can be demonstrated that one spouse was insane at the time of marriage without the knowledge of the other spouse, or if it can be demonstrated that the ill spouse has become incurably insane during the marriage. Further, even in pure no-fault states, including Florida and California, the complaining spouse can obtain a divorce upon proof that the other spouse is incurably insane.

Proof of Insanity

Although these grounds exist, proving incurable insanity can often be more difficult than simply getting a no-fault divorce, and the evidence required may include the testimony of multiple physicians. Further, both Mississippi and Florida require, as a threshold for divorce based on insanity, that the ill spouse be confined to an institution or considered incapacitated for at least three years.

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Role of Guardians

If a non-ill spouse brings an action for divorce against an ill spouse, a general guardian or the guardian of an estate may represent the interests of the ill spouse. The court may also appoint a temporary "guardian ad litem" to represent the ill spouse in legal proceedings, depending on the ill spouse's condition. However, the question of whether the guardian of a mentally incapacitated person can file for divorce varies considerably from state to state, and is often not allowed unless certain language is present in the state's statutes. Courts in Michigan have interpreted a statute allowing guardians to prosecute general lawsuits to include divorces. In contrast, South Carolina courts have ruled that guardians may not file for divorce.

Effect on Alimony

In cases of mental incompentency, particuarly when the ill spouse is either confined to an institution or cannot earn a living through employment, a court can order long-term spousal support. In North Carolina, for example, the law provides that the non-ill spouse is required to provide the ill spouse with a "reasonable subsistence," which would include the cost of a treatment facility. The court, however, still retains jurisdiction to increase or decrease the award if the institutionalization costs change.

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