Family Law

Grounds for Divorce: Insanity

By Kristina Otterstrom, Attorney
Considerations when divorcing a spouse who suffers with mental illness.

The decision to end your marriage can be a difficult one. It can be even harder if your spouse is suffering from a severe mental illness. You may worry about your spouse’s ability to function or about setting off a volatile response to the divorce. Depending on the severity of your spouse’s mental condition, you may be able to file for a divorce on the basis of your spouse's insanity.

What Constitutes Insanity for the Purpose of Divorce?

Each state has its own laws regarding the acceptable grounds (or reasons) for a divorce. All states allow some form of a no-fault divorce, either based on a couple's irreconcilable differences or a separation for a certain amount of time. However, many states allow another, special ground for divorce based on one spouse's insanity.

In the divorce context, insanity generally includes severe mental illness and incompetence. In most jurisdictions, if you’re filing for divorce based on your spouse's insanity, you’ll need to prove at least the following:

  • your spouse’s condition is incurable, and
  • your spouse’s condition has been present for a minimum number of years (usually at least five years).

For example, you probably won’t be able to file for a divorce based on insanity if your spouse was diagnosed with mild depression last month. Additionally, a number of states, like Utah, require a doctor’s certification of the insanity. In some cases, your spouse must be hospitalized or in a mental institution for a certain amount of time to be deemed insane.

Proving Insanity Grounds

A divorce based on one spouse's insanity can quickly become an uphill battle. You bear the burden of proof in your divorce, and a judge will require a substantial amount of evidence in order to confirm your spouse's mental illness. To prevent a judge from dismissing your case, you’ll need to gather your spouse’s psychiatric and medical records, reliable witnesses, and even experts that can testify about your spouse’s condition.

If your spouse is currently institutionalized or unable to comprehend what’s happening, a court will likely appoint a guardian at litem or conservator to assist your spouse and represent your spouse's interests in the divorce. A family member may step up and take on the role of conservator or guardian. A conservator will protect your spouse’s interests as well as help your case move forward.

The insanity ground is rarely used because it can be difficult and time consuming to prove. Before pursuing a divorce based on insanity, you should speak to a local family law attorney who can give you specific advice about your case. A divorce based on separation may be a better alternative depending on your circumstances.

Other Support Considerations

Whatever grounds you choose for your divorce, you may still be on the hook for financial support. A judge could require you to pay alimony or spousal support if the mental illness makes it impossible for your spouse to work. Also, in certain cases your state government can seek reimbursement from you for costs associated with your spouse’s institutionalization. While divorce is never easy or simple, divorcing a mentally ill spouse can be especially complicated. It’s important to consult a local family law attorney for advice, so that you learn more about your rights and potential responsibilities.

Questions for Your Attorney

  • I have children and don’t think my spouse should have custody because of her mental illness. Should I file for divorce on insanity grounds to protect my kids?
  • My spouse recently had a mental breakdown and is currently hospitalized. Do I need to wait for him to be released before filing for divorce?
  • Will a court adjust a support award if my spouse eventually recovers from mental illness?

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