Divorce, Mental Illness, And Legal Incapacity

Divorce, Mental Illness, And Legal Incapacity

by Apr 24, 2019Divorce

When considering the issue of mental health and divorce, it is important to distinguish between two separate scenarios:

  1. Pre-existing mental health issues that are the basis of getting a divorce
  2. The process of divorce causing mental health issues

This article is meant to specifically address the first issue only, as there is a specific legal circumstance that deals with divorce due to mental illness.

What Is Legal Incapacity?

While California is a “no fault” divorce state – which means a spouse does not need a specific reason for getting divorced – there are special considerations for divorce due to mental illness. A judge can decide to dissolve a marriage on the grounds that a spouse is permanently unable to make rational decisions. This is known as legal incapacity.

Determining that someone is legally incapacitated means that the court believes that that person lacks the ability to make such decisions such as:

  • Getting married
  • Entering into contracts
  • Making medical decisions
  • Executing wills or trusts

Those seeking a divorce based on legal incapacity must prove that the other spouse permanently lacked the capacity to make decisions at the time of the divorce filing.

A judge will require the testimony or statement of multiple mental health professionals to determine whether the spouse in question suffers from mental illness to the extent that spouse is legally incapable of making decisions.

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How Child Custody Is Affected

Child custody is always determined first and foremost by what is in the child’s best interests. If a judge believes that a child’s safety is threatened by a parent’s mental illness, they are unlikely to receive custody.

In a worst-case scenario, a judge may declare a parent developmentally disabled or mentally ill. If the Director of State Hospitals, Director of Developmental Services, or similar official certifies that a parent is incapable of supporting or caring for a child properly, the state can petition the court to terminate the parent’s parental rights.

Annulment Due To Mental Health

In California, it is possible for a marriage to be annulled if one spouse couldn’t have consented to the marriage at the time of the wedding. If a spouse is unable to understand the nature of marriage (due to mental illness), the marriage can be annulled.

If, however, a spouse suffering from mental health issues at the time of their marriage recovers and continues to live freely with the other spouse, the marriage cannot be annulled.

Getting Legal Help

For those that are contemplating divorce because a spouse is suffering from mental illness, it is highly recommended to speak with an attorney first.

Mental health and divorce are complicated topics that must be dealt with in a very specific way. Trying to navigate the process without an attorney is almost guaranteed to fail. To get help with your specific situation, please contact our office today for a free consultation.


At Vonder Haar Law Offices, we offer every client a free phone consultation to discuss their unique situation and determine how we can help. To arrange a consultation, please fill out the adjacent form or call us at: (707) 529-3200.

We provide representation in California State and Federal Courts. We accept most major credit cards for your convenience.

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