Can I Divorce My Mentally Ill Spouse in Illinois?

 Posted on October 08,2024 in Divorce

Divorce is often complex and emotional. It can be even more so if you are a spouse who wants to divorce your mentally ill spouse. Living with a loved one who has a diagnosed mental illness can be a constant roller coaster. You may have tried virtually every tip and tactic for dealing with your spouse’s mental illness.

If your relationship has become too emotionally draining or if your own mental health is being adversely affected, it could be time to consider divorce. To be clear, Illinois is now a no-fault divorce state, which means the only grounds for divorce recognized in Illinois are irreconcilable differences.

So, while the mental illness of a spouse cannot be used as grounds for divorce, mental health issues can impact the division of marital assets, the allocation of parental responsibilities, and spousal maintenance. The spouse who is mentally ill cannot file for divorce on his or her own, but a guardian can file on behalf of the mentally ill spouse.

The test for the mental capacity required for filing a petition for divorce is whether the petitioner has sufficient mental capacity to understand the meaning and effect of the petition. If you are considering filing for divorce from your mentally ill spouse, it can be beneficial to speak to a knowledgeable Naperville, IL divorce lawyer from the Law Office of Ronald L. Hendrix, P.C..  

How is the Allocation of Parental Responsibilities Affected by Mental Illness?

The mental illness of your spouse may only be considered in the determination of the allocation of parental responsibilities if it will adversely affect the best interests of the child. If the parent with mental illness is unable to perform basic parental duties, that parent may be given parenting time that could be supervised.

The parent can be ordered by the court to seek psychiatric help, follow recommended treatments, and take prescribed prescription drugs. If the safety of the child could be endangered by the parent, overnight parenting time may not be allowed. If the parent’s mental illness has a substance abuse element, he or she may be ordered to undergo treatment and regular screenings.  

How Can a Mental Health Issue Affect the Division of Marital Assets?

A spouse’s mental health issues cannot directly affect the division of marital assets. That being said, some of the criteria used to determine the split of marital assets include each spouse's income, health, and earning potential. If your mentally ill spouse has a lower earning capacity than you, then he or she might be awarded a larger share of the marital assets.

Since judges often seek to ensure that a spouse is not worse off financially after divorce, the fact that your mentally ill spouse may be unable to work and make a living could result in him or her receiving more marital assets than you – assuming you are still able to work and make a living.   

Will Spousal Support Automatically Be Paid to the Spouse with a Mental Illness?

When determining spousal maintenance, a family court judge will consider a wide range of factors. These include:

• Each spouse’s income

• The financial needs of each spouse

• The earning capacity of each spouse

• The mental and physical condition of each spouse

If your spouse has limited income, no ability to work and make a living, and has a mental illness, the judge will likely order spousal support. This assumes you are able to work and make a living and have sufficient financial resources to pay spousal support.  

Contact a DuPage County, IL Divorce Lawyer

While you may not be able to request your mentally ill spouse’s medical records without his or her approval, most mentally ill people have many past events that will show sufficient evidence of the mental illness. When you choose a Naperville, IL divorce attorney from the Law Office of Ronald L. Hendrix, P.C., we will work hard to ensure your divorce from your mentally ill spouse goes as smoothly as possible.

Attorney Ronald L. Hendrix is a court-appointed mediator and holds a master’s degree in guidance and counseling in addition to his law degree. This makes him eminently qualified to guide you through your divorce. Call 630-355-7776 to schedule a free consultation.