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January 22, 2023 Feature

Divorcing an Unseen Illness

Rebecca A. Iannantuoni

Our Supreme Court has long recognized that a “fundamental right to marry” is embedded in the United States Constitution. See, inter alia, Turner v. Safley, 482 U.S. 78 (1987); See, also, Obergefell v. Hodges, 772 F. 3d 388 (2015) (Due Process Clause of the Fourteenth Amendment guarantees the right to marry as one of the fundamental liberties it protects, and that analysis applies to same-sex couples in the same manner as it does to opposite-sex couples). The understanding of marriage and the expectations arising therefrom vary widely across cultures and time. And, yet, nothing so powerfully challenges this understanding and these expectations more than a spouse with a mental health issue.

Mental illness occurs when the brain (or a part of the brain) functions abnormally and produces “a clinically significant disturbance in an individual’s cognition, emotional regulation, or behaviour.” See WHO, Mental Disorders, Key Facts (June 8, 2022). Mental illness is not caused by stress alone nor is it a consequence of bad behavior or a personality deficit. It is the function of a brain disorder. Mental illness has no regard for a person’s race, class, or sexual identity. It merely challenges how a person thinks, feels, and behaves. It can deeply impact a person’s day-to-day life and their ability to relate to others. For more information of mental illness, visit the National Alliance on Mental Illness (NAMI) website.

Mental health conditions are far more common than we think, mostly because, as a society, we have not eased the stigma of mental illness. These stigmas are exhibited, and biases revealed, through the stereotypes and/or prejudices that people with mental illness are dangerous or incompetent or even responsible for their disorders. Unfortunately, these biases then often combine with discrimination. Employers may not hire those with mental illness, landlords may not rent to them, and health care providers often incorrectly attribute physical symptoms to a person’s mental illness. See APA, Stigma, Prejudice and Discrimination Against People with Mental Illness.

Despite these biases, a recent statistic noting that one in five adults in the United States experiences some form of mental illness each year attests to its occurrence and reoccurrence. See NAMI, About Mental Illness.

Unlike the clearly physical aspects of a person with an amputation or the visual aspects of an individual with epilepsy experiencing a grand mal seizure, mental illness has no necessarily visible aspect. However, it does have very visible impact on the marriage contract. Living with and loving a person with mental illness can be heartbreaking and unpredictable and leave the partner without mental illness feeling powerless. As an unfortunate result, divorce and mental illness are significantly interconnected. Moreover, the impact of mental illness on a person’s capacity can be a challenging force in the divorce framework.

Complicating the situation is the fact that mental illness and incapacity can evolve over time. Sometimes, a person is incapacitated only for a certain duration; other times, the person never regains autonomy. For example, a 70-year-old woman who has a diagnosed mental illness and a drug addiction as a comorbidity but is undergoing treatment is (arguably) temporarily incapacitated (until she is sober and medication compliant). Whereas a 28-year-old man with a schizophrenia-spectrum disorders is (likely) permanently incapacitated.

Incapacity prevents us from undertaking certain tasks or making decisions on our own. Often times, in the case of total incapacity, we can no longer enter into a contract, manage our money, or make personal health care decisions, among other tasks. In the case of partial incapacity, a court of competent jurisdiction can make a judicial determination that preserves to us certain identified tasks of independence. The determination of incapacity is very much assessed, and ultimately adjudicated, on a case-by-case basis. Personal liberties are our most fundamental rights, and a usurpation of one right should not mean unilateral usurpation of all rights.

In the setting of mental illness vis-à-vis marriage, a determination of capacity provides notable challenges with the timing of the incapacity being of paramount importance. In other words, did the incapacity happen before the marriage, during the marriage, or during the divorce? The fixing of the time of the mental illness’ onset often proves to be critical.

When the alleged incapacity as a result of mental illness occurs before the marriage, the question turns on whether the person had capacity to consent to the union. In Connecticut, for example, Conn. Gen. Stat. § 46b-40(b), provides that “[a]n annulment shall be granted if the marriage is void or voidable under the laws of this state or of the state in which the marriage was performed.” There are statutory and common law grounds for annulment in most jurisdictions and a decree of annulment is a clear and appropriate consequence if a party to the union was unable to consent. If there is no consent, then the marriage contract cannot be legally valid.

Examples of when a court may consider annulment for lack of capacity to consent in the mental health setting include, but are not limited to, the following (there are, of course, other statutory and common law grounds for the annulment of a marriage that does not involve mental health related concerns, such as the marriage between consanguineous persons, marriage performed by an unauthorized person, marriage of/between minor(s), or intoxicated parties at the time of marriage):

  • Mental illness or cognitive impairment: If a party to a marriage is mentally ill or so cognitively impaired that he/she could not knowingly and/or willingly consent to marriage, the marriage may be annulled.
  • Temporary psychosis: If a party to a marriage is claiming a temporary or periodic psychosis, the affected person’s condition at the time of marriage governs whether or not he/she possessed the legal capacity to marry. However, a marriage will not be annulled if it was entered into during a “lucid” interval between episodes of psychosis.
  • Protective proceeding: There is no consummate rule for all persons under a protective proceeding that allows or prohibits marriage. For each individual, the answer depends on the reason for the protective proceeding, the extent of the guardianship/conservatorship, and the particular individual’s mental capacity. In circumstances where it is determined that a conservator or guardian should have given consent to marry, then in the absence of such consent, there are (arguably) no rights of marriage.

An annulment proceeding may be initiated by either party to the marriage. And, unsurprisingly, the party initiating the annulment has the burden to prove that he/she has the grounds to do so. If it can be proven, as noted above for a lack of consent for a mental health reason, then the marriage is considered null and void by the court. Assume, however, that the marriage contract is valid. What then happens if mental illness arises during the marriage?

Spouses who suffer from significant mental health diagnoses (e.g., major depression, anxiety, personality disorders) often fail to not only meaningfully engage in the marriage and family life, but also may be affirmatively destructive to the family unit. There may be associated and challenging consequences, such as loss of libido and physical intimacy, noncompliance with medication, loss of employment, or erratic, narcissistic, or paranoid behaviors—all of which put tremendous stress on the spouse without mental health concerns. When the marriage is irreparably broken by these challenges, a divorce action may be filed.

Today, every state (and the District of Columbia) permits no-fault divorce, although requirements for obtaining a no-fault divorce vary. California was the first, and, in 2010, New York was the final state in the Union to enact a no-fault divorce law. Interestingly, as of 2021, only 19 states are “true” no-fault divorce states in that the only option for filing is no-fault.

Notwithstanding that no-fault is allowed for the purposes of filing, the sensitive nature of incapacity tied to mental illness creates a dilemma. As a very preliminary consideration, divorce can be contested or uncontested. In the latter, spouses agree on the terms of the marriage dissolution and do not need the court to divide assets or make determinations about spousal support or child support or custody. Certainly, this begs the question of whether an incapacitated spouse can actually consent or agree to the terms of the marriage dissolution. Seeking the opinion of a mental health professional for these purposes can be invaluable because, as we know, an uncontested divorce will proceed through the system more quickly, and it is less of a financial burden for both parties.

Divorce is never easy but becomes significantly more complicated when one of the parties suffers from mental health issues. There are so many factors to bear in mind under these circumstances. As discussed, mental health issues can be temporary, surface sporadically, manifest differently each time, and be triggered by any number of events and variables. In working with spouses where mental health is an issue, we are well-served as practitioners to do the following:

  • Be patient: Acknowledge that we do not understand what we do not understand about their brain functioning.
  • Address significant decisions at moments of lucidity: Learn when the individual functions the best. For example, maybe the spouse has the most clarity of thought mid-morning after the morning medication has titrated.
  • Make efforts to keep the divorce as (reasonably) nonadversarial as possible: The goal is to end the troubled marriage with the least amount of damage to all involved. It is not necessarily a time to win at all costs.
  • Be nonjudgmental of their thoughts and actions: Regardless of whether you represent the party with mental health issues or the spouse, the objective is the same.
  • Encourage consistent treatment with mental health providers: They are the professionals best equipped to manage and process the events of divorce in the light of the specific mental health challenges.

When a spouse becomes incapacitated during a divorce proceeding, the appointment of a substitute decision maker, such as a conservator or guardian, will likely be needed to protect and govern the person and property of the incapacitated spouse. A power of attorney is generally insufficient for these purposes. The laws surrounding agent’s powers under a power of attorney vary greatly by state.

A power of attorney creates a principal-agent relationship wherein the principal grants certain powers to an agent. The agent, essentially, has all of the same authority as the principal to make decisions, handle financial affairs, and manage assets. There is no direct oversight of the agent’s activities by anyone other than the principal and can be easily revoked by the principal at any time. In states where a power of attorney can be used for purposes of pursuing a divorce, the risk of revocation, during the proceeding, by the principal with mental health issues, should be strongly considered.

The alternative to proceeding under a power of attorney involves an application for a protective proceeding (again, a guardianship or conservator, depending on the jurisdiction). When capacity is at issue, the court may appoint a guardian/conservator with authority to act on the incapacitated spouse’s behalf. The process for the appointment of a guardian/conservator is governed by the court rules. Depending on the severity of the incapacity, the court may appoint a guardian in a limited capacity, preserving the incapacitated person’s ability to participate in the proceedings to the extent reasonable.

A party with mental health issues may be not able to make some decisions, but the same individual may retain the capacity to make others. Moreover, an individual with issues of capacity may have the ability during a “good” period to make decisions but lose capacity during a “dark” period. Whereas the law presumes the parties have sufficient mental capacity to marry and to divorce, the law also presumes that a mere diagnosis of mental illness does not render a party legally incapacitated. A consultation with doctors is critical in this assessment. Again, not all mental health disorders render a person legally incompetent, which is why experts are essential in this process. Our role as practitioners is also to preserve what liberty we can for our clients suffering from mental illness.

Upon appointment of such a guardian/conservator, the appointed fiduciary may move forward in negotiating and finalizing the divorce proceedings, including, but not limited to, entering a settlement agreement or final divorce judgment on behalf of the incapacitated. If a settlement cannot be reached, the fiduciary may proceed to trial.

The divorce process, with the attendant complications of property division, spousal support, and child custody and support, is already an overwhelming experience; if concerns about one spouse’s mental capacity is added into the mix, this situation becomes infinitely more complex. The degree of mental impairment experienced by a spouse, particularly if there is a medical determination or judicial finding of incompetency, will determine which aspects of the divorce process are impacted and how a court is likely to handle the issue.

As noted previously, mental health issues can impact everything from property division to child custody. A spouse’s mental illness may reduce or enlarge that spouse’s share of the marital estate. Specifically, mental illness can interfere with a person’s ability to support themself or their family. A judge may award alimony or a larger share of the marital estate if mental illness prohibits the spouse from working or makes it difficult to maintain consistent employment. Alternatively, if a spouse’s volitionally untreated mental illness is the cause of the divorce, a judge may increase the stable spouse’s alimony or support awards.

Different states have different factors that a judge should (or must) consider when issuing support awards or determining physical custody arrangements but, generally, mental illness plays the largest role in support and custody rulings. Many states empower judges to apply the “best interests of the child” standard in divorce proceedings involving child custody.

And, while no single factor is determinative in a custody case, a judge will evaluate a family’s overall circumstances to determine the custody arrangements best suited to the child’s needs. Of course, a parent’s mental health issues are just one of many factors that a judge will take into consideration.

Mental illness can impact all facets of life and exert profound influence over marriage and divorce. Its presence can inflict damage to the marital union and deepen and prolong the divorce process. The ongoing interplay of incapacity, divorce, and the judicial process is an extraordinarily challenging trifecta, and, to the extent feasible, this trifecta should be handled with civility and respect. Try to articulate and not litigate.

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Rebecca A. Iannantuoni

New Haven, CT

Rebecca A. Iannantuoni is a partner with Day Pitney LLP in New Haven, Connecticut. She represents fiduciaries, handles estate administration, and advises high net worth individuals and families regarding all aspects of estate planning, with a particular focus on elder law and planning for persons with special needs. She also has extensive experience assisting clients with Title XIX Medicaid planning.