Mental Health And Divorce?

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Mental Illness And Divorce in Illinois

Mental Health And Divorce?

The family law and divorce system in Illinois was written and promulgated imagining reasonable, rational parties unwinding their lives in a logical manner. We all get emotional during a break up and the family law system is set up to be slow but fair. This way our emotions don’t get the better of us. But, there is a big difference between being emotional and being mentally ill.  When someone is mentally ill and they are getting divorced, the other spouse should be aware of the precautionary measures that Illinois divorce law makes available. So, what do you need to know about mental illness and divorce in Illinois?

Is Mental Illness Or “Acting Crazy” A Reason To Get A Divorce In Illinois?

Clients always tell me about their unstable spouse while using words like “crazy” and “sick”. These stories of a spouse’s mentally erratic behavior can affect ancillary issues such as child custody, capacity to earn income and other final items in the divorce judgment.  But, a spouse’s mental illness, in itself is not a cause for divorce.

Illinois has only one cause for divorce, irreconcilable differences.  So, you don’t need to identify your spouse’s exact personality disorder.  An Illinois divorce court will believe you don’t get along anymore.  After all, you filed for divorce.  That’s proof enough in itself.

Protecting Yourself From A Mentally Ill Spouse During An Illinois Divorce

If your spouse has hurt you, you need to file a motion for a petition for an order of protection.

If your spouse’s behavior is so erratic that you believe they could be violent and hurt you, you should file a petition for an order of protection.

“A petition for an order of protection shall be in writing and verified or accompanied by affidavit and shall allege that petitioner has been abused by respondent, who is a family or household member.” 750 ILCS 60/203(a)

“Abuse” sounds pretty broad and the Illinois statute defines it really broadly.

“Abuse” means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” 750 ILCS 60/103(1)

Realistically, a mentally ill person’s behavior could fall into one of these descriptions several times a day.

The history of mental illness and those abusive effects can also be presented to the court.

“the nature, frequency, severity, pattern and consequences of the respondent’s past abuse, neglect or exploitation of the petitioner or any family or household member” 750 ILCS 60/214(c)(1)(i)

Once you have an Illinois order of protection from a mentally ill spouse you’ll have an order that  will “[p]rohibit [the spouse’s] harassment, interference with personal liberty, intimidation of a dependent, physical abuse, or willful deprivation, neglect or exploitation, as defined in this Act, or stalking of the petitioner” 750 ILCS 60/214(b)(1)

So, your spouse cannot contact you, talk to you or be in your presence if you have an order of protection against them.  Mentally ill people often will not be deterred by an order of protection so, if they violate the order of protection, they will be arrested and appear in a criminal NOT a divorce court.

“A violation of any order of protection, whether issued in a civil or criminal proceeding, shall be enforced by a criminal court” 750 ILCS 60/223(a)

The order of protection can even get a visibly mentally ill spouse some kind of court ordered counseling.

“Counseling. Require or recommend the respondent to undergo counseling for a specified duration with a social worker, psychologist, clinical psychologist, psychiatrist, family service agency, alcohol or substance abuse program, mental health center guidance counselor, agency providing services to elders, program designed for domestic violence abusers or any other guidance service the court deems appropriate. The Court may order the respondent in any intimate partner relationship to report to an Illinois Department of Human Services protocol approved partner abuse intervention program for an assessment and to follow all recommended treatment.” 750 ILCS 60/214(a)(4) 

In addition, an order of protection can get you exclusive possession of the marital home and custody of the children.  Both can be awarded on a temporary basis via the order of protection until the matters are finally determined in the final divorce judgment, marital settlement agreement and allocation of parenting time and parenting responsibilities.

But, an order of protection is a very extreme way to start your Illinois divorce…even if your spouse is mentally ill.

Proving Your Spouse is Mentally Ill In An Illinois Divorce

Doctor’s diagnoses and a person’s prescriptions are private under federal HIPAA privacy laws. You can’t ask your spouse’s doctor to turn over these private medical records.

You don’t need a doctor’s analysis to prove or even imply to the court that your spouse is mentally ill.  Most mentally ill people have a litany of past events that are sufficient evidence of their mentally illness.

Outside of testifying as to their incomes or lack thereof, a mentally ill person may be doing a lot of testifying that you know to be fantastical but a judge may take seriously.  This is particularly relevant when a spouse is a psychopath and/or narcissist adept at manipulating people.

If your spouse is testifying untruthfully, it is your attorney’s job to cross-examine your spouse after the testimony and prove that the statements are, in fact, false.  This is called “impeaching the witness”

Impeaching the witness does not involve questions like “you are a crazy liar, aren’t you?”

Impeaching the witness is introducing evidence that circumstantially implies the witness is a liar and mentally ill.

In the process of impeachment on cross-examination, you are allowed to bring up all sorts of evidence like hearsay and bad character you wouldn’t normally be allowed to under Illinois evidence laws.

“The credibility of a witness may be attacked by any party, including the party calling the witness, except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of affirmative damage.” Ill. R. Evid. 607

“The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness” Ill. R. Evid. 608

Illinois divorce judges have seen it all.  They will be able to see through your spouse’s lies if your divorce lawyer’s cross examination allows the judge to see the web of contradictions that clearly imply a borderline personality.

There will be a temptation to have an outside expert certify that your spouse is mentally ill. In fact, there is a process for this called a “215 investigation.”

Rule 215 of the Illinois Supreme Court rules provides that: “In any action in which the physical or mental condition of a party or of a person in the party’s custody or legal control is in controversy, the court, upon notice and on motion made within a reasonable time before the trial, may order such party to submit to a physical or mental examination by a licensed professional in a discipline related to the physical or mental condition which is involved.”

While 215 investigations are common in divorces with children, there is not one appeals court ruling in Illinois which has allowed a 215 investigation in the divorce of a childless couple.

How Can A Mental Illness Affect A Divorce Without Children In Illinois?

While it’s obvious that mental illness has a massive impact on who spends what time with the children and who makes the decisions for the children, mental illness can still affect a divorce where there are no children.

Your spouse’s mental illness will probably affect their ability to earn an income. This will affect their right to request maintenance (formerly known as alimony).

To order maintenance a court must consider certain factors to see if the spouse requesting maintenance is, in fact, eligible for maintenance. Some of those factors include.

“The realistic present and future earning capacity of each party”. 750 ILCS 504(a)(3)

AND

“The age, health, station occupation, amount and sources of income, and sources of income, vocational skills, employability, estate liabilities, and the needs of each party”. 750 ILCS 504(a)(9)

So, if your spouse is mentally ill and that mental illness affects their ability to either get or hold onto a job, your spouse will be awarded some kind of maintenance.

Mental Illness in A Divorce With Children In Illinois

Marrying a mentally ill person is unfortunate but having children with a mentally ill person is a tragedy…and one that is never going to end. But, it can be managed.

An Illinois divorce court “shall allocate parenting time according to the child’s best interests” 750 ILCS 5/602.7(a). 

An Illinois divorce court will also “allocate decision-making responsibilities according to the child’s best interests.” 750 ILCS 5/602.5(a)

The Illinois divorce court then evaluates a series of factors to determine that best interest.

Those factors include:

“[T]he mental and physical health of all individuals involved” 750 ILCS 5/602.7(a)(7) and 750 ILCS 5/602.5(c)(3)

If there is a mental health issue regarding your spouse, your children, your spouse’s boyfriend or girlfriend, your spouse’s parents or whomever, you can raise this statutory factor.  When raising the statutory factor you can ask that the children’s exposure to the mentally ill person be limited and/or that the mentally ill parent not be allowed to make decisions for the child.

An accusation of mental illness is serious, complicated and the answer is not obvious. Therefore, an Illinois court will require an investigation. An Illinois divorce court will almost always allocate that investigative duty to a guardian ad litem.

“Guardian ad litem” is a mix of English and Latin words which means “Guardian For the Lawsuit.” In an Illinois divorce,  guardian ad litem is an attorney who is appointed to represent the children’s best interests.

“The guardian ad litem shall investigate the facts of the case and interview the child and the parties.” 750 ILCS 5/506(a)(2)

These investigations and interviews get personal.  Anything about your mental health or the mental health of spouse will be on the table.

With a guardian ad litem in your divorce case no one can hide behind HIPAA’s privacy laws. The guardian ad litem will simply ask you to sign a release so they can review your complete medical history.  This includes talking directly to therapists and psychiatrists treating a parent or other party associated with the children in the divorce.

If a person refuses to sign a release to disclose their medical history, that refusal will be included in the guardian ad litem’s final report and will certainly color the guardian ad litem’s final recommendations.

“The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child” 750 ILCS 5/506(a)(2)

In 95% of cases, Illinois divorce judges adopt the guardian ad litem’s report as the final allocation of parenting time and parenting responsibilities.

The guardian ad litem can even make a parent see an independent psychiatrist appointed by the court.

“Court’s professional. The court may seek the advice of any professional, whether or not regularly employed by the court, to assist the court in determining the child’s best interests.” 750 ILCS 5/604.10(b)

This type of court professional is usually a child therapist or psychiatrist whose focus is on the child.

If the focus really is on the mental well-being of a parent, then a rule 215 examination (as described previously) may be ordered in lieu or in addition to a 604.10(b) court professional.

Crazy Behavior Around Children During Or After A Divorce

Parties to a divorce are often on their best behavior during the divorce.  But, unfortunately, mental illness is not curable.  Mental illness is only manageable.  Sooner or later a mentally ill person is going to do something “crazy” around their children.

When this happens, you can ask for an immediate hearing to restrict the mentally ill parent’s time with the children.

“After a hearing, if the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development, the court shall enter orders as necessary to protect the child.  Such orders may include, but are not limited to, orders for one or more of the following:

(1) a reduction, elimination, or other adjustment of the parent’s decision-making responsibilities or parenting time, or both decision-making responsibilities and parenting time;

(2) supervision, including ordering the Department of Children and Family Services to exercise continuing supervision under Section 5 of the Children and Family Services Act;

(3) requiring the exchange of the child between the parents through an intermediary or in a protected setting;

(4) restraining a parent’s communication with or proximity to the other parent or the child;

(5) requiring a parent to abstain from possessing or consuming alcohol or non-prescribed drugs while exercising parenting time with the child and within a specified period immediately preceding the exercise of parenting time; 

(6) restricting the presence of specific persons while a parent is exercising parenting time with the child

(9) any other constraints or conditions that the court deems necessary to provide for the child’s safety or welfare.” 750 ILCS 5/603.10(a)

If you’re dealing with a seriously mentally ill parent you are going to have to restrict parenting time sooner or later based on this portion of the statute.  In fact, it may be easier to just settle your case and wait for the inevitable incident to occur while hoping no one becomes mentally, emotionally or physically scarred in the process.

How Do I Know That The Other Parent Is Taking their Prescription Medication? 

It’s pretty expensive to keep a guardian ad litem on retainer perpetually to review a parent’s prescription medication on a month-to-month basis.

There may be a cheaper, easier way to verify the other parent is getting the treatment they need in order to be a stable presence in your children’s lives.

The Illinois statute 750 ILCS 5/603.10(a) allows a prohibition of non-prescription drugs and allows for “conditions that the court deems necessary to provide for the child’s safety or welfare.”

I would argue that this allows the court to require as a condition of parenting time that the mentally ill parent disclose their treatment and prescription medication to the other parent on an ongoing basis.

Drugs, Alcohol and Mental Illness In An Illinois Divorce

People who suffer from mental illness take medications to manage their illness.  Mentally ill people that don’t take prescription medication almost invariably self-medicate with drugs and alcohol.

If your spouse is mentally ill and abusing drugs and/or alcohol, you don’t need to prove the complicated underlying mental illness in order to restrict parenting time and decision making for your children. You only need to prove that the parent is abusing drugs and alcohol in such a way as to be a danger to your children.

At that point, you can file a motion under 750 ILCS 603.10(a), as described above, to restrict your spouse’s parenting time until it is certain that the parent no longer has an issue with drugs and or alcohol.

What If A Spouse’s Mental Illness Is So Extreme That The Spouse Is Or Should be Institutionalized?

If you are so afraid for your spouse that you believe that your spouse should be institutionalized, or have their affairs taken over by a competent adult, then you should talk to a probate lawyer.

If your spouse is going to be institutionalized, you need to be realistic. You are morally obligated to both yourself and your children to get a divorce from an extremely disturbed individual.

In such a situation, you get divorced first and let the institutionalization or guardianship happen afterwards.

If you have questions about mental illness and divorce, please contact my Chicago, Illinois family law firm to arrange a free consultation with an experienced Chicago divorce lawyer.