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Home > Divorce > Mental Health Issues and Divorce

Mental Health Issues and Divorce

Claremont Divorce Lawyer Helping Parents Protect Their Family and Their Finances in Divorce

Divorce is a challenge at the best of times. When dealing with a spouse suffering from mental illness or significant mental health issues, the process can be even more difficult. You might not know how to deal with your spouse, they may pose a danger to you or your children, or you could be concerned about how their condition affects your assets and other divorce matters. An experienced and compassionate California divorce lawyer at Blasser Law can help you overcome the additional challenges posed by a divorce involving mental health issues, whether you are concerned for your spouse, your children, your family, or your own rights.

Divorce Based on Mental Illness

Like the rest of the country under present-day laws, California is a no-fault divorce state. That means that a party need not prove adultery, cruelty, or any of the traditional grounds for divorce. California has taken it a step further and actually removed all grounds for divorce apart from two: irreconcilable differences (the traditional grounds for no-fault divorce) and incurable insanity/permanent lack of legal capacity.

The latter option is rarely used in California, but it’s available for parties who can prove by way of reliable medical or psychiatric evidence that one spouse was and remains incurably insane. If the party will never recover their legal capacity, their spouse can file for divorce based on those grounds. Depending on the circumstances, the spouse filing for divorce may be able to obtain a larger share of marital assets or a greater spousal support award should they successfully prove that their spouse permanently lacks mental capacity.

Mental Health and Child Custody

In California, if the parties cannot agree on a child custody arrangement, the court will make a determination based on the best interests of the child. The child’s safety is the court’s first and foremost concern. The court’s default position is that both parents should continue to have a role in the child’s life; sole custody with no visitation is rarely ordered and is reserved for situations in which the child’s safety would be compromised by continued contact with one parent.

The court will consider several factors to determine the best child custody arrangement. The capacity of each parent to provide a healthy, stable environment for the child is a significant factor. Should one party be unable to provide a safe environment because of mental illness, the court would take that into strong consideration when making a child custody decision. A court may choose to grant primary custody to the other parent and, if the parent’s issues are severe enough, the court could choose to strip the mentally ill parent of their legal parental rights.

In most cases, if a child is removed from a parent’s home due to mental illness, the state’s Department of Social Services will provide treatment and services aimed at reuniting the family. Should the mental health issues prove too severe, however (such as if the parent is a danger to themselves or others or lacks legal capacity and is not likely to regain it), then the Department will forgo these services.

Outside of lack of capacity, alcohol and substance abuse can also factor into custody decisions. Again, the court and the Department will aim for treatment and ultimate reunification. If a child’s safety is truly at issue–for example, if a parent injured the child in a drunk driving accident–the court might choose to revoke their parental rights permanently.


Annulment is a different process for ending a marriage. When a marriage is annulled, the court invalidates the wedding on the grounds that it was never validly entered into in the first place. One of the grounds for annulment is a lack of legal capacity. If one party’s mental health issues were so severe that they lacked the legal capacity to consent to the marriage at the time of the wedding (or if they were too impaired by drugs or alcohol to consent), then the court can grant an annulment. If the party’s mental health recovers and they continue to live with their spouse voluntarily, however, with the capacity to consent, the court will not annul the marriage.

Restraining Order/Order of Protection

If one spouse’s mental condition has led to threats or actual domestic violence against the other spouse or other family members, one spouse can petition the court for a restraining order, also known as a protective order. A protective order prohibits the targeted party from engaging in certain behavior, which can include having any sort of contact (phone, email, in person) with the protected party or their family.

If your spouse poses a danger to you or your children, get to a safe place immediately and contact the authorities. A California family lawyer can help you get a protective order and other relief in order to keep your family safe.

If you are facing the prospect of divorce and your case involves special mental health issues, our southern California family lawyer is ready to help. For a consultation on your potential annulment, divorce, or custody dispute, contact an experienced and trusted Claremont divorce attorney at Blasser Law for a consultation, at 877-927-2181.

Blasser Law

445 West Foothill Blvd., Suite 108
Claremont, CA 91711




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