Mental Health Issues & Divorce

Mental illness is not grounds for divorce in Illinois. However, it can affect some of the terms of the divorce. Mental health issues can impact the division of marital assets, child custody, parental rights, and spousal maintenance. A person who is mentally incapacitated cannot file for divorce, personally or through a guardian.

How can mental health issues affect property division in a Chicago divorce?

Under state laws, a spouse’s mental health cannot directly affect the division of marital assets. The court has the discretion to determine how marital property is split based on the income, health, and earning potential of each spouse. A family court judge may award a spouse who is mentally ill, with lower earning potential, a more significant split of the marital estate. If one spouse has a drug habit and spent marital assets funding that addiction, the judge may decrease the addicted spouse’s share of the marital estate to compensate the other spouse for the loss.

How does mental health impact child custody arrangements?

Termination of parental rights

In making decisions regarding the allocation of parental responsibilities, the court always considers the child’s best interests. If one parent has a documented history of mental illness and cannot perform basic parental duties, the court may terminate that parent’s parental rights. This requires testimony by a mental health professional that the parent is mentally ill with no reasonable hope of recovery. This does not necessarily preclude visitation (parenting time) or parental responsibilities.

Required psychiatric treatment

Short of terminating parental rights, the court may require a parent deemed mentally ill to meet with a psychiatrist, follow recommended treatments, and take recommended prescription drugs. A judge may order that visitation periods be supervised by a professional, forbid overnight visitations, or take other measures as the judge sees fit.

Substance abuse required treatment and screenings

The court can order a parent with a substance abuse problem to seek help from a mental health professional and present proof of compliance with recommended treatment. Parents addicted to a substance are often required to submit to random drug or alcohol screenings and prohibited from becoming intoxicated before or during child visitation periods.

Can mental health issues affect spousal maintenance?

Family court judges consider a range of factors in determining whether to award spousal maintenance (alimony) in a divorce. Those factors include:

  • Income of each spouse
  • Financial needs of each spouse
  • Present and future earning capacity of each spouse
  • Physical and mental condition of each spouse

If one spouse has limited income and mental health issues, the judge may order the other spouse to make spousal maintenance payments if they are not mentally ill and have higher earnings. In Illinois, spousal maintenance is calculated by subtracting 25% of the supported spouse’s net annual income from 33 1/3% of the paying spouse’s net annual income.

The duration of spousal support payments is calculated as a percentage of the marriage duration (from the date of the marriage to the date a divorce petition was filed). Examples of these duration percentages are .20 for less than five years, .52 for 12 years or more but less than 13 years, and .80 for 19 years or more but less than 20 years. If the marriage has lasted more than 20 years, the court can award maintenance for a period equal to the length of the marriage or an indefinite period.

Can a marriage to a mentally incapacitated spouse be dissolved?

As mentioned, a person determined to be mentally incapacitated cannot file for divorce. If a spouse is not capable of understanding the nature of divorce proceedings or determining whether they want a divorce, that spouse lacks the capacity to divorce. However, a judge can annul a marriage that should not have been allowed in the first place. A mentally incapacitated spouse may be eligible for annulment. The same is true for a spouse who got married under the influence of alcohol or drugs. However, you must request an annulment within 90 days of discovering the grounds.

What if you need protection from a spouse with mental health issues?

In some cases, mental health issues may involve violent or abusive behavior. In this case, you will need to file a petition for an order of protection with the court. An emergency order of protection (EOP) goes into effect immediately and is valid for 14 to 21 days. When issuing an EOP, the court will set a hearing date for a plenary order of protection. Both the petitioner and the respondent will have an opportunity to plead their cases. When granted by a judge, a plenary order of protection can last for up to two years.

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