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Divorcing a Spouse with a Mental Illness

“I, take you, for my lawful wife/husband, to have and to hold from this day forward, for better, for worse…in sickness and health, until death do us part.”

Most people want to believe that they can stand by their marriage vows no matter what happens. However, some people may discover that the new Mr. or Mrs. has a severe mental illness. In other cases, you or your spouse may develop a mental illness later in life. Many people will stand by their husband or wife “in sickness,” but time may bring greater and greater stress to the marriage with no respite in sight. If you or your spouse has a mental disorder that is breaking down the marriage, is there an exit ramp?

mental illnessCan I Divorce My Spouse If They are Mentally Ill?

Generally, an individual has capacity to divorce if that individual understands the nature of a divorce and the legal and financial consequences of being divorced. A mental illness may impair mental or emotional function, but as long as the person understands what a divorce is and how it will affect his or legal and financial status, the person can still divorce or be divorced.

Example #1 – A spouse with bipolar disorder may go through “manic” episodes where the person stays up all night and spends thousands of dollars in a month and then pivots to extreme depression where the person refuses to get out of bed and might physically hurt themselves if they do. Legally, it would be possible to obtain a divorce, even if doing so might trigger a depression episode.

Example #2 – A spouse is diagnosed with paranoid schizophrenia and believes that an old employer is blackmailing his wife and the family court judge into divorcing him. Legally, it would be possible for the wife to obtain a divorce, although a guardian might be appointed to manage the husband’s interests (for example, to prevent the husband from filing a frivolous appeal which would further exhaust his financial resources).

Example #3 – A spouse with Alzheimer’s Disease forgets that she was married and cannot remember she jointly owns a vacation home and two joint bank accounts with her husband. In this case, a court could rule that the spouse lacks capacity to divorce and the ruling would likely be affirmed on appeal.

Note that these are only examples and that courts determine capacity on a case by case basis. Consult an attorney to determine whether you or your spouse has capacity to marry or divorce.

Is It Moral to Divorce My Spouse If They’re Ill?

Some parties may worry about the moral or social effects of divorcing a spouse with mental illness. After all, marriage vows state that couples will support each other “in sickness or in health.” Many divorcees may feel guilty about leaving a lover in his or her time of need.

Moral considerations are ultimately up to each individual. However, if a mentally ill spouse is draining you for years on end, it may be imperative to your own health and mental/emotional well-being to at least separate from the other spouse, at least for a little while.


Just as a party must have capacity to divorce, parties must have capacity to marry before getting married in the first place. Capacity to marry is similar to the capacity to divorce: an individual has capacity as long as he or she understands what a marriage is and how marriage would impact his or her legal and financial standing.

In some cases, it may be easier for a newly married couple to file for annulment due to mental incapacity to marry instead of trying to go through a divorce. If one of the parties didn’t understand that he or she was getting married, annulment will be a valid option.

On the other hand, annulment will be more difficult to prove. Unlike divorce, the party seeking annulment must actually prove that one of the parties lacked capacity to marry, while divorces today are typically no-fault divorces and no offer of proof is required.

Child Custody and Visitation

Although a spouse with a mental illness may have the capacity to be divorced, the mental illness may present obstacles to child custody. The Court will have two competing obligations. In all child custody cases, a judge must act in the child’s best interests. A judge must put the well-being of the children ahead of any other considerations. On the other hand, federal law requires that courts reframe from discriminating against mentally disabled individuals.

The compromise against these two competing interests is to determine whether a mentally disabled individual would be able to care for the children without endangering them. Judges cannot assume that a parent is unfit merely because he or she has a disorder. Parties must actually prove that the parent with mental disorder is unable to serve as a parent. And even if a disability might interfere with a parent’s ability to care for children, certain accommodations such as medication or supervision should be considered before visitation is reduced or custody removed.


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