Mental health issues can challenge any marriage. The same mental health issues that affected your marriage will probably impact your divorce and the division of your assets. For families with children, each spouse’s mental health history is important to custody decisions.
Q. How will a proven history with mental health issues affect what I am awarded from the estate in a pending divorce?
A. Mental health issues by either party will certainly have an impact on a divorce with respect to property division. The Texas Family Code Section 7.001, makes a “just and right division” of the community estate when parties divorce. For many families, this typically means an equal split of the community estate with respect to the assets and debts. However, there are some instances in which the court may award a disproportionate share of the community estate. The Texas Supreme Court set out factors for a disproportionate share of the community estate in Murff v. Murff. There, the court set out several factors for courts to consider when they are making a just and right division of community property and debts. The factors are: the disparity of incomes or earning capacities of the spouses; the spouses’ capacities and abilities; benefits which the party not at fault would have derived from a continuation of the marriage; business opportunities of the spouses; spouses’ educations; spouses’ relative physical and financial conditions; spouses’ separate estates (if any); nature of property to be divided; fault in the breakup of the marriage (adultery, cruel treatment, other spouse is convicted of felony and imprisoned for at least one year, abandonment for a year or more, living apart for at least three years, other spouse is confined to a mental hospital for at least on year); or a parties’ attorney’s fees. A party with a mental health issue that can be demonstrated to prevent him or her from working may be grounds to argue for a disproportionate share of the estate to be divided.
Each spouse’s mental health history is important to custody decisions.
Q. Will I be able to get full custody of the children because my spouse is being treated for mental health issues?
A. A child’s best interests are the central focus of a judge’s decision when determining 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 suffers from mental illness, the court will assess whether that mental illness impacts his or her fitness as a parent. If it does, that parent may be awarded limited visitation rights, or even denied access to the child unless or until he or she gets help and becomes fit to parent. When a court makes a determination in a custody dispute, they generally do so with the ultimate goal of allowing the child to continue his relationship with both parents. The court may award:
- Primary custody, where one parent has the child most of the time and the other parent gets scheduled visits at regular intervals, such as every other weekend.
- Sole custody, where one parent has the child all the time and the other parent either does not get to visit at all or gets to visit only on a very limited basis, such as occasional supervised visits.
A judge will consider each parent’s emotional stability and ability to provide a child with a safe environment. While minor, well-controlled mental health issues may not have much of an effect on custody, major mental health problems will. Texas law allows judges to consider mental illness as a factor that can limit, prohibit, or restrict custody rights. In In Re Marriage of Swim, the court upheld custody limitations because the father stopped treatment for his bipolar disorder and relapsed with his use of illegal drugs. However, in many cases, a parent’s visitation restrictions will be lifted after a demonstrated period of emotional stability and commitment to consistent, ongoing mental health treatment.
Q. I am currently battling anxiety and depression. It is possible to postpone the divorce until I am feeling better?
A. Unlike criminal law, a spouse can’t avoid a divorce by claiming insanity or mental illness. In Wahlenmaier v. Wahlenmaier, the court held that insanity does not preclude a divorce and a party may still be represented by a guardian ad litem or next friend.
Q. Is a mental health disorder grounds for divorce in Texas?
Every divorce petition requires a statement of “grounds” or a reason for the breakup. In Texas, you can file for divorce based on “fault” or “no-fault” grounds. No-fault divorces don’t require a specific cause other than “insupportability,” which basically means the marriage is over with no hope of reconciliation (this is also known as “irreconcilable differences”). Texas law allows fault divorces based on cruelty, adultery, abandonment, felony conviction, or confinement in a mental hospital. The third ground for divorce is confinement in a mental hospital, at least three years plus the requirement that “the mental disorder is of such a degree and nature that adjustment is unlikely or that, if adjustment occurs, relapse is probable.” If the grounds for divorce are a spouse’s confinement in a mental hospital, the Texas court will appoint an attorney ad litem to represent him during the divorce proceedings. The attorney ad litem may make decisions for the mentally ill spouse, and she protects his legal interests during the divorce proceedings.
Q. My spouse has proof I have struggled with depression. What can I do while the divorce is in progress to improve my chances for a good outcome?
A. It is imperative to first be honest and upfront about your mental health issues while a case is pending and not attempt to hide or downplay any proven mental health issues. Often in a divorce, if a party has a mental health issue or concern, 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 is 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 a psychiatrist to address your issues.
Q. Our divorce was just finalized, but I suspect my former spouse is still battling with his mental health issues. It is OK to keep track of any bad acts I notice?
A. If you have a spouse who has had a history or pattern of mental health issues, it is important to keep track of your observation of your former spouse even after 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 present 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 he or she has 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 a possession schedule.
Q. How can my spouse and I best keep the details of one or our mental health issues from the public to avoid having it become public knowledge in a divorce?
A. For many families, maintaining privacy in their divorce when mental health issues are present is a major concern. 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 financial 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 facing dealing with mental health issues.
About the Expert:
With a compassionate focus and an eye toward the future, Aimee Pingenot Key works with clients to skillfully assist them in identifying their goals and guide them toward a resolution in often complex and contentious family law matters. Having a master’s degree in social work provides her with a unique ability to understand complex and novel custody issues and work with both clients and mental health professionals to identify what is at stake for the clients she represents. Her compassion for families in crisis assures that she remains a tireless advocate for everyone she represents. For same-sex couples whose relationships are not recognized by Texas courts, Key uses the collaborative process as well as creative and personalized contractual agreements to resolve property and custody issues. A partner in GoransonBain, Key is board certified in family law and has been included in The Best Lawyers in America©.
Featured in D Magazine Ask the Expert.