Mental Health Issues and Divorce in Virginia

An overview of the effects of mental health issues on divorce.

By , Attorney

Mental health issues, such as anxiety, depression, OCD, and addiction disorders can impact a marriage. If you or your spouse has mental health struggles, it's best to seek help. If the relationship is over, it's important to know that mental health concerns may affect the divorce as well. This article provides an overview of the effects of mental health issues on divorce in Virginia. If you have questions after reading this article, please contact a local family law attorney for advice.

Grounds for Divorce

In Virginia, your divorce petition must state the "grounds" or basis for splitting from your spouse. All states allow divorces based on "irreconcilable differences" or separation, which are also called "no-fault" divorces. Many states also allow a spouse to file a "fault" divorce where the spouse blames the other's actions for the breakdown of the marriage. Virginia allows fault-based divorces in the following circumstances:

  • spouse's adultery
  • spouse's incarceration for felony conviction
  • spouse's desertion , or
  • spouse's cruelty or abandonment.

A healthy spouse can file for divorce from a mentally ill spouse citing any of the above grounds or through a no-fault divorce. A spouse can claim insanity to mitigate his or her fault in a divorce. However, a spouse's insanity won't prevent the healthy spouse from obtaining a divorce.

Impact of Mental Health Issues on Child Custody

Mental health issues won't destroy a parent's chances of getting primary custody. A child's best interests are central to any custody decision. A judge will look at each parent's emotional and physical health when deciding what kind of parenting arrangement serves a child's best interests. More severe mental illnesses will have a greater impact on custody.

In one Virginia case, a father with a history of depression was awarded primary custody of his children. Although the children's mother did not have a diagnosed mental illness, she was emotionally unstable and regularly moved residences following her divorce. By contrast, the father had been hospitalized for depression several years before, but since then held a steady job, had close family ties, and showed emotional stability. As a result, the father was deemed most fit for custody despite his previous mental illness.

Addiction can also impair a parent's ability to care for a child. Parents who abuse drugs or alcohol may have limits placed on visitation to protect their children. A judge can order supervised visitation (where a third party supervises visits between the parent and child at a designated place and time) until the parent can show stability or recovery.

When Will a Court Terminate Parental Rights?

A termination of parental rights is an extreme measure. A judge will terminate a parent's rights as a last resort, when it serves a child's best interests. Some circumstances where a termination of parental rights is appropriate, include:

  • the parent willfully neglected his or her child, posing a serious threat to the child's life, health or development
  • the parent suffers from a permanent and severe mental illness or intellectual disability
  • the parent habitually abuses drugs, alcohol or narcotics
  • the parent physically or sexually abused the child, and
  • the parent has refused for at least 12 months to remedy the conditions that caused the child to be placed in foster care.

A mentally ill parent can lose his or her parental rights if he or she doesn't remedy mental health issues. In one Virginia case, a couple that struggled with mental health lost parental rights to six of their children. The children's father had schizophrenia, obsessive-compulsive disorder, paranoia, and depression. The mother's mental health wasn't much better, and the developmentally-delayed children lived in squalor. Ultimately, the court severed the parents' rights, deciding that the parents did more harm than good for their children.

Impact of Mental Health Issues on Support

A spouse's mental health issues almost always affect support awards. In one Virginia case, a bipolar spouse struggled to hold a job and could not recall basic information or directions. The court decided that the bipolar spouse's mental illness prevented her from meeting her basic financial needs and ordered the other spouse to pay alimony.

Child support is a different matter, however; a mentally ill parent may still be required to pay child support out of his or her disability or social security checks. A judge will balance the financial needs of parents and children in each case.

Will a Judge Consider a Parent's Past Mental Health Issues?

A spouse's mental health history is relevant to any custody decision. A mentally ill parent who harmed or neglected his or her child may have limitations placed on custody. However, a parent's short struggle with depression or anxiety probably won't affect the outcome of a custody case.

A mentally incompetent spouse, even if he or she is later restored to competency, can void or annul his or her marriage. The spouse's mental incompetence must exist at the time the couple married. Virginia law defines mental competence as the capacity to understand the duties, obligations and responsibilities associated with marriage. For example, a judge can consider a parent's past mental health issues where he or she was incompetent at the time of marriage because of mental illness or the influence of drugs or alcohol.

A spouse's mental health issues can impact your marriage and your divorce. Your family's unique circumstances will determine the outcome of your case. If you have additional questions about the impact of mental health issues in divorce in Virginia, contact a local family law attorney for advice.

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