Mental Health Issues and Divorce in Colorado

Learn how mental health issues might affect divorce in Colorado.

Mental illness has a devastating impact on millions of American lives each year and can have an equally devastating effect on many marriages. Many states have special rules for divorce, child custody, and alimony when mental illness plays a role.

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

Mental Health and the Grounds for Divorce

Colorado spouses seeking a divorce don't have to prove that the other spouse caused them to separate; this is called "no-fault divorce." While in many states a spouse can seek a divorce on grounds of the other spouse's mental illness, this is not an option in Colorado.

In some instances, however, spouses suffer from mental illnesses that prevent them from being competent to act in their own interests. In these cases, the mentally ill spouse's divorce attorney can ask the court to appoint a guardian ad litem to represent the spouse's interests. If a mentally ill spouse doesn't have an attorney, the judge can appoint a guardian ad litem. If there is a disagreement about whether a spouse is incompetent, the court must hold a hearing to determine whether the spouse in question:

  • is incapable of understanding the nature and significance of the divorce proceeding
  • is incapable of making critical decisions
  • lacks the intellectual capacity to communicate with counsel, or
  • is mentally or emotionally incapable of weighing the advice of counsel.

A person who shows any of these signs must have an appointed guardian ad litem.

Mental Health Issues and Custody

In custody cases, Colorado courts craft custodial arrangements based on what's in the child's best interests. In most cases, judges encourage frequent contact between each parent and minor child continuing after the separation or divorce. In some cases, however, parents may have mental health or addiction problems that force courts to limit their custodial rights.

One factor that judges consider when determining custody is the mental health of both parents, along with anyone else that lives in either parent's home. Many mental illnesses are not serious enough to cause a judge to deny or restrict parenting time, only those mental health problems that negatively impact parenting abilities and the minor child at issue. Many parents manage their mental illnesses in a way that limits any impact on children. Some parents, however, suffer from mental illnesses that make them prone to violence or child neglect. Judges lean heavily on the testimony of mental health experts when determining whether a parent's mental illness affects parenting ability.

Courts have many options when dealing with a parent whose mental illness affects parenting ability. A judge may order that visitation be supervised or restrict overnight visitation. In more serious cases, a court can order no visitation at all. In the most severe cases, such as when a parent's mental illness poses a threat to a child's mental or physical well-being, a judge may terminate parental rights. For a court to terminate parental rights, the parent's mental illness must be of a nature and duration that the parent won't be able to care for the child for the foreseeable future.

A parent's addiction to drugs or alcohol may also affect child custody. While moderate use of alcohol won't affect the custody decision, alcohol abuse, or abuse of illegal or prescription drugs negatively impacts a parent's chances of getting child custody. Courts may order a parent to submit to drug and alcohol screens and can also order a parent to abstain from possessing or consuming alcohol or controlled substances for 24 hours prior to, and during, each visitation period.

If a parent's abuse of alcohol or drugs negatively impacts a minor child, a judge can limit or end visitation. In extreme cases, such as when a parent's drunk driving injures a child, the court may permanently terminate all parental rights. In most cases, however, the court will give an addicted parent a chance to seek treatment before permanently removing all custodial rights.

Can Mental Health Affect Alimony?

In Colorado, courts use guidelines to calculate spousal support, also called "alimony," based on the spouses' incomes, the difference in their incomes, and the number of whole months they were married. Judges then adjust the calculated alimony based on several other factors, one of which is each spouse's employment and employability. If a spouse can't work due to mental illness, the court may increase the alimony award. Prior to granting alimony, however, judges will consider all other sources of income the mentally ill spouse has, including disability benefits. It is not unusual for a court to grant a mentally ill spouse alimony sufficient to maintain the marital standard of living.

On the other hand, a spouse's addiction to alcohol or controlled substances won't justify (by itself) an alimony award, even if the addiction prevents the spouse from working.

Mental Health and Annulment

Colorado courts can declare a marriage invalid (also called an "annulment") if a spouse lacked the legal capacity to consent to the marriage due to mental illness. Either spouse can file a petition for annulment due to mental illness within six months from when the filing spouse discovered the mental condition. Alternatively, a guardian of a spouse who lacks legal capacity can file for annulment on the mentally ill spouse's behalf.

Similarly, a judge can declare a marriage invalid if a spouse was under the influence of alcohol, drugs, or other intoxicating substances at the time of the marriage. A spouse seeking annulment due to intoxication must petition the court within six months of the date of marriage.

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

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