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Specializing In Family Law Litigation And Mediation

Can I divorce my mentally ill spouse?

Divorce can be a complicated issue for any couple, but for a party whose spouse is mentally ill, it can be more challenging. You may be asking yourself if it is even possible to leave the marriage.

Rest assured it is possible to divorce a mentally ill spouse in California. However, how you handle the divorce will determine if it can be granted.

Grounds for divorce in California

There are only two grounds divorcing parties can file under in the Golden State: irreconcilable differences and permanent legal incapacity to make decisions.

Because California is a "no-fault" divorce state, the spouse asking for a divorce doesn't have to prove the other spouse did something wrong if they file under "irreconcilable differences." If a spouse chooses to file under "permanent legal incapacity," there is a burden of proof the petitioning party must meet.

This proof includes competent medical or psychiatric testimony that, at the time of filing and continuing to this day, permanently lacking the legal capacity to make decisions. Emails and Facebook messages between you and your spouse, which can usually be used as evidence in a divorce, are not proof in a divorce for reasons of permanent legal incapacity. Even if your spouse says in a message "I am mentally ill and cannot make decisions for myself," you still need medical proof.

If proof is provided and the divorce is granted, any obligation imposed by law as a result of the marriage for the support of the spouse will not be relieved. The court can make an order for support or require a bond after that. So if you were under any obligations for your spouse's care or financial well-being before the divorce, you might be required to continue meeting them after the divorce is final.

No proof? No problem

Before you file for divorce, consider whether or not you can provide medical testimony that will be accepted by the court before filing under "permanent legal incapacity." In most cases, your spouse may be mentally ill but not legally incapable of making decisions, or at least not incapable permanently. Remember that as a "no-fault state," if you cannot prove your spouse's mental illness you can still file under "irreconcilable differences" in California.

Before you file for divorce, consider talking to a divorce attorney who can help you map out the best way to approach the dissolution of marriage in a way that meets your needs and respects the mental health of your spouse.

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