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Mental Health and Divorce in Florida

Over 40 million people in the United States suffer a mental illness in any given year. These millions of mental health issues, in turn, affect millions of marriages each year. Each state has its own laws governing how a person’s mental health issues can affect divorce, child custody, and alimony.

This article explains how mental health affects divorce in Florida. If you have additional questions about mental health and divorce in Florida after reading this article, you should  consult a local family law attorney.

Mental Health and Divorce

In most states you can divorce your spouse for either fault grounds or no-fault grounds. Florida is not one of these states; you can’t divorce your spouse for typical fault grounds such as adultery, abandonment, or cruel treatment. Under Florida law, spouses can only divorce for two grounds: the marriage is irretrievably broken or one spouse is mentally incapacitated.

If a spouse wants to divorce on grounds of mental incapacity, the mentally ill spouse must have been incapacitated for at least three years. Spouses are considered incapacitated if they suffer from a mental or physical disability to the extent they can’t make independent legal decisions, such as signing contracts, marrying, or divorcing. In these cases, a judge will appoint a  guardian ad litem  to represent the insane spouse’s interests in the divorce case. If the court grants a divorce based on a spouse being incapacitated, the judge may award the insane spouse alimony. Also, a mentally ill spouse has just as much right to the marital estate as a sane spouse.

In Florida, you can’t divorce your spouse due to habitual intoxication like you can in many other states. You can present evidence of your spouse’s alcohol or drug problems during the divorce case, however, since it can be relevant to child custody or financial issues. For example, if a spouse wasted marital money on drugs and alcohol, the court could decide to give that spouse a lesser share of the marital estate after divorce.

Mental Health Issues and Custody

Florida courts must create a child custody and visitation schedule based on what is in each child’s best interest. Judges will consider all factors that affect a child’s wellbeing, including whether a parent suffers from a mental illness. Being mentally ill isn’t a bar to gaining custody; many parents who are able to manage their illness effectively are granted child custody. But when a parent’s mental illness negatively affects his or her parenting ability, a court may structure custody and visitation to reduce the impact of the parent’s mental illness on the child.

Florida judges have a number of options for crafting custody arrangements in cases where there is some concern about child visitation with a mentally ill parent. The court may take any of the following precautions:

  • prohibit overnight visitation
  • order supervised visitation
  • require the mentally ill parent to meet regularly with a mental health professional and comply with treatment, or
  • in serious cases, prohibit visitation altogether.

When a mentally ill parent has caused serious harm to a child, or is otherwise too ill to play a role in the child’s life, a judge may order a termination of parental rights. Termination of parental rights is a permanent legal removal of the parent-child relationship, and is reserved for only extreme cases. A mental health professional, such as the administrator of a mental hospital that treats the parent, must testify that a parent’s mental illness is expected to continue indefinitely before the court will terminate that parent’s parental rights.

Florida courts also consider a parent’s use or abuse of alcohol or drugs when deciding custody. Moderate use of alcohol is seldom a problem; judges are concerned with alcohol or drug use that negatively impacts a child. A parent with addiction problems is less likely to win child custody, and may also have visitation restricted to protect the child. Courts often require addicted parents to seek treatment and abstain from any use of drugs or alcohol before and during visitation periods. A parent who fails to address substance abuse issues can lose visitation privileges, up to and including a termination of parental rights.

Can Mental Health Affect Spousal Support?

Florida courts look at several factors when determining whether to order one spouse to pay the other spousal support, also called “alimony.” Since one purpose of alimony is to help a spouse who isn’t self-sufficient pay expenses, one of the most important alimony factors is each spouse’s current income and earning potential. If mental health issues prevent a spouse from working, a judge may award that spouse alimony, depending on the length of the marriage.

In Florida, a short-term marriage is one that lasts less than 7 years, a moderate-term marriage lasts between 7 and 17 years, and a long-term marriage lasts more than 17 years, all measured from the date of marriage until the date a spouse files for divorce. There are several different  types of alimony in Florida, but generally, the longer the marriage, the longer alimony will continue. If a couple is divorcing after a long-term marriage, the court can order the healthy spouse to pay permanent alimony (with no end date) to the mentally ill spouse.

If a spouse can’t work due to alcohol or drug addiction, a judge is not likely to grant that spouse long-term alimony. If a court grants an addict alimony, it could be helping to continue the addiction. In some cases though, a court may require a sober spouse to pay for the addicted spouse’s treatment, but the addicted spouse will be expected to become self-sufficient following addiction treatment.

Other Issues

Courts can still require incapacitated individuals to pay child support or spousal support if they have the funds to do so. A person seeking support should serve the petition for support on the incapacitated spouse’s guardian.

Florida judges have the power to  annul a marriage, meaning to cancel the marriage as though it never took place. In cases where a spouse was incapacitated at the time of the marriage to the point he or she couldn’t consent to the ceremony, a court can annul the marriage.

If you have additional questions about divorce and mental health, contact a Florida family law attorney.

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