Mental Health Issues and Divorce in New York

Learn how mental illness may affect divorce cases in New York.

By , Retired Judge

If you live in New York and are involved in a divorce or other family law matter, you may be interested in learning whether mental illness, such as depression, bipolar disorder, and addiction can affect your case. This article will address that topic, but if you have specific questions about your own case, you should contact a local family law attorney for advice.

Is Mental Illness a Ground for Divorce in New York?

To sue for divorce in New York, you need valid "grounds" (reasons). In New York, spouses can seek "no-fault" or "fault-based" divorces.

With no-fault divorce, neither spouse has to claim that the other spouse caused the breakup. Typically, spouses will cite "irreconcilable differences," which means the marriage is broken and can't be saved.

With a fault-based divorce, one or both spouses will seek to blame the other for the split. Fault-based grounds in New York include:

  • adultery
  • cruel and inhuman treatment, and
  • desertion (abandonment).

Although mental illness and addiction aren't grounds for divorce in New York, mental health issues may still be related to or considered in divorce proceedings.

As seen above, one of the fault-based grounds for divorce is one spouse's cruel and inhuman treatment of the other. In order to be a valid basis for divorce, the cruelty must endanger the physical or mental well-being of the spouse so much that it's unsafe or improper for that spouse to live with the other.

Many times, a spouse's drunkenness, drug addiction, or mental instability is accompanied by physical or verbal abuse, which is intended to cause mental anguish. This could be sufficient grounds for a court to grant a divorce based on cruel and inhuman treatment.

How Mental Incapacity Affects Annulment

When a court grants an annulment, it voids the marriage (as if it never existed) because it never should have happened in the first place.

In New York, two of the grounds for annulment relate to mental health. They are:

  • a spouse's inability to consent to a marriage because of a lack of understanding, and
  • a spouse has been incurably mentally ill for a period of five years or more.

Regarding inability to consent, the law says that the question is whether a spouse, at the time of the marriage, wasn't able to understand the significance of the decision to marry, because of mental illness or retardation. An example of this might be where one of the spouses was suffering from delusions caused by schizophrenia.

As to incurable mental illness for five years or more, an annulment won't be granted until three physicians, who are recognized authorities on mental disease, agree that the spouse is incurably mentally ill.

Mental Health Issues and Custody

When deciding child custody and visitation, a court's main concern is the child's best interest.

In New York, a court will look at several factors in deciding these issues, including:

  • whether joint custody (the child lives with both parents) or sole custody (the child lives primarily with one parent) will best provide stability
  • the home environment, and
  • each parent's fitness to raise the child.

In determining a parent's fitness, the court will take the parent's mental health and any substance abuse problems into account. If necessary, the court can impose certain conditions that the parents must meet. For example, if a parent is struggling with a drinking problem, the court could order that parent to refrain from consuming alcohol when with the children.

Sometimes, a judge may believe that a parent simply can't be left alone with a child due to serious mental instability or active substance abuse. In that case, the court can order "supervised visitation," which means the parent can only see the child in the presence of a third party, such as a grandparent, mutual friend, or social services agency.

Mental Illness and the Termination of Parental Rights

Occasionally, a parent's behavior is so harmful to the child's welfare that a court may find the parent is unfit to raise the child. If that situation arises, the court can terminate (cut off) the parent's rights.

In New York, the court can order termination for a limited number of reasons. Two of these reasons relate to mental health. They are: mental retardation and mental illness.

The law says that these mental conditions have to be so bad that if the child were in the parent's custody, he or she would be in danger of becoming a "neglected child." This basically means the child would end up being placed with a social services agency, and it's likely the parents wouldn't keep in touch with the child after that placement occurred.

The court would also need to hear testimony from a psychiatrist or approved psychologist as to how severe the mental retardation or mental illness was.

How Mental Health Can Affect Alimony and Property Distribution

Under New York law, two of the factors that a court will consider in determining whether to award alimony ("spousal support")—and how much—are:

  • the spouses' ages and health, and
  • the spouses' present and future earning capacity.

The term "health" includes mental health, and this can play a role in determining what type of support a court will order—lifetime alimony or temporary alimony.

In New York, lifetime alimony may be proper where a spouse's mental illness is so bad that the spouse isn't capable of becoming self-supporting in the future. Where such an illness is treatable, however, and it's likely that the spouse can maintain and job and cover living expenses in the future, then temporary alimony may be more appropriate.

As with alimony, when it comes to dividing property in a divorce, the court will consider the spouses' mental health. So a court may decide that a spouse's mental illness may be a reason to give that spouse more than half of the property, if that helps the spouse meet his or her needs.

The topic of mental health and divorce in New York is complex. Consult a qualified family law attorney with any questions you may have.

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