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A blog post for those facing mental health problems during a divorce

The attorneys with the Law Office of Bryan Fagan frequently utilize this space to describe just how difficult divorce is. You may think that is counterintuitive for a family law attorney. Aren’t we supposed to be “selling” you all on getting a divorce in the first place? If you look around at other family law blogs you will almost get the impression that lawyers around town want you and your spouse to get a divorce- as if there were no consequences for you, your family, or our community. Divorces are not something that we should “work towards”, but rather to work against getting by all means available.

If, however, you and your spouse cannot sort through your issues and instead discover that a divorce is the only path to take then in that event you have a right to move forward with your case. Our firm wants you to know that you have an ally, an advocate, and strong representatives in our attorneys should you ever need to utilize us. With all of that said, divorce is not easy nor fun and we would be doing you a disservice to try and argue otherwise.

Today’s blog post from the Law Office of Bryan Fagan will discuss with you a factor in divorce cases that stands to make things even more difficult. I am referencing when a spouse has a mental issue and is then involved in a divorce. Whether it is you or your spouse, mental health issues can profoundly affect a divorce. While you almost assuredly are working with mental health professionals to better yourself and/or your spouse, divorce creates a whole new set of potential problems to sort through. Add in the stresses of a divorce and it is imperative that you know what to expect if you are facing this unique set of circumstances so that you, your family, and your attorney know how to prepare for them.

Why are you getting a divorce?

While any married person in Texas can file for divorce for any reason that they choose a Petition for Divorce must specify that reason. These are called the “grounds” for divorce in legal speak. What reason are you specifying as far as why your marriage is no longer something that you can pursue on a long-term basis?

The vast majority of Texas divorces end up being “no-fault” cases where there is no specific reason why the divorce was filed. Simply growing apart from your spouse with no chance of getting back together is the reason most people end up moving on from one another. This is a relatively recent development in the field of family law. For decades (and even longer in some places) you or your spouse would have to specify a fault ground for getting a divorce.

Fault grounds for divorce

Fault grounds for divorce include abandonment, a felony conviction, adultery, cruelty, and confinement in a mental hospital. There are additional fault grounds that exist in Texas and if you are interested in learning what those are you can read about them in the Texas Family Code. Of the specific fault grounds for divorce in Texas, I would like us to focus our attention on the last of the ones that I mentioned above- confinement in a mental hospital.

Insanity and/or confinement in a mental hospital as fault grounds for getting a Texas divorce

If you are needing to prove that your spouse is insane to get a divorce then you would need to produce evidence and then prove that your spouse was confined in a mental hospital for at least three years and that their insanity is not a temporary condition. Anyone who has even the slightest familiarity with criminal law probably knows that a person is accused of having committed a crime can plead insanity as a defense to that crime. In divorce cases, insanity can be cited as the cause of the divorce but you or your spouse cannot plead insanity as a defense to having a divorce filed against you. The “insane” spouse can have a guardian ad litem appointed to represent his or her interests in a divorce but that condition will not completely stop the divorce from happening.

How do mental health issues impact the child custody portions of a divorce?

A court will be very concerned with your ability to parent your children if it is determined that you have mental health problems. The reason for this, among others, is that a court has to make decisions regarding child custody based on what would be in the best interests of your children. Do you as a parent offer your children an environment in which their physical, emotional, and educational well beings can be maximized? Or are you risk to those areas of their lives?

If you cannot be trusted to care for yourself then it is hard for a judge to decide that you are not a risk for your children, therefore. Consider how your emotional stability could potentially impact your divorce. If you are not able to control your emotions, delay gratification, plan or think critically/analytically through problems then it is extremely unlikely that you would be able to do so for your children. In a life or death situation, a judge would have to think long and hard regarding whether or not you would be able to intercede on behalf of your children to protect them from harm.

Can a mental health condition cause you or your spouse to lose time with your children?

If you have a “slight” mental health problem, like attention deficit disorder or something along those lines it is possible that with a proper medication regimen you can succeed as a parent despite your mental health problem. I don’t mean to diminish the potential impacts of ADD or ADHD on your life, however, these are not the sort of mental health problems that typically require inpatient medical or psychiatric care.

Significant mental health conditions have the potential to affect your divorce in profound ways, however. Consider this hypothetical example. Suppose that your husband is battling severe depression, anxiety, and bi-polar disorders. You have had to check him into care at a local psychiatric ward of a well-known hospital where he has had off and on stays that total six months throughout your ten-year marriage. These conditions have offered challenges that you both have attempted to work on but they have now gotten to the point where you have concerns about your child’s well-being when your husband is home. As a result, you have decided to pursue a divorce.

On a Monday morning, you walk into our office to discuss with our attorneys the possibility of our office representing you in a divorce from your spouse. Among the most important questions that you ask, you would like to know how likely it is that a court will look negatively at your spouse’s mental health problems as far as child custody issues are concerned. You are not trying to deny your husband the opportunity to see your children, but his behavior of late has you a bit worried that he could harm your children inadvertently.

The information that we provide to you would probably sound a lot like the following. Texas judges are empowered to make decisions regarding your children’s well-being in determining an appropriate visitation plan for noncustodial parents like your husband. Your judge could deny, limit, or otherwise restrict his access to your children while he is not well mentally or otherwise unable to act responsibility in his duties of raising your children.

If your spouse has undertaken consistent treatment and has appeared to be on the upswing in terms of the handling of his mental health conditions then that may be seen as a positive in his efforts to be awarded as much time with your children as possible. However, if he is utilizing illegal drugs or otherwise acting inappropriately this would almost certainly be disastrous for his ability to spend a significant amount of time with your children once your divorce is completed.

Supervised visitation

It is a rare case when a judge completely bars a parent from seeing their child. Even parents who have committed acts of family violence will often get visitation with their children- albeit restricted in most circumstances. Another option that judges will frequently order in cases where mental health problems are apparent is to allow a spouse to have supervised visitation for some time.

Supervised visitation usually involves the spouse battling mental health issues being able to visit with their child in a supervised setting like a supervised visitation facility, relative’s home, or public place. The point of doing this is to help protect a vulnerable child from the actions of a parent who cannot fully be trusted with the child’s best interests. This is a bitter pill for most parents to swallow- understandably so. Think about if you had to have your parenting time with your child supervised by a person that you don’t even know or by your ex-spouse. That is a completely unnatural situation to be in as a parent but may be necessary if you are suffering from mental health problems.

Fortunately, if you find yourself in this situation there is hope for you. If you can improve your mental health through counseling, medication, or a combination of the two it is possible that you could be awarded more autonomy over your parenting sessions as time goes by. Gradually your parenting/visitation time periods could be made to be not supervised at all. If and when you find housing of your own your child could even be allowed to visit there. This is typically referred to as “stair-stepping” where your parenting periods become more normalized.

Drug testing as a part of a mentally ill person’s parenting plan

Another aspect of these type of scenarios is that drug testing is often times mandated as a mechanism by which a court and the other parent can oversee a mentally ill parent’s behavior to best ensure the safety of a child. These drug tests can be administered by following a set schedule as laid out in the Final Decree of Divorce or can be done randomly and without notice per the request of the non-mentally ill parent.

The emotional and mental stability of you or your spouse can improve, of course. I don’t mean to make it seem like your life cannot improve once you have been diagnosed with mental health problems. As we have seen, your restrictions to visiting with your child can be backed off upon or withdrawn completely if your condition improves.

On the other hand, you risk significant financial costs if they do not. The costs associated with attending supervised visitation sessions with your children at a supervised visitation facility will be borne by you. Additionally, while your ex-spouse is likely to be on the hook for paying for random drug screenings that are negative, if you test positive consistently those tests are likely to be your responsibility. In short, it is incredibly important to take the orders of your court seriously and to do whatever you can to improve your mental health.

Termination of parental rights, child support and annulments will be discussed in tomorrow’s blog post

Thank you for your interest in learning more about mental health challenges as they pertain to Texas divorce cases. Your own case may be impacted by many of the scenarios that we have laid out today and we hope that the information that we have shared today will be helpful to you.

In tomorrow’s blog post we will discuss additional subjects that relate to mental health problems, including the possibility that you or your spouse’s parental rights could be terminated as a result of mental health problems. We hope to have you back with us then.

In the meantime, if you have any questions about the material that we have covered please do not hesitate to contact the Law Office of Bryan Fagan. We offer free of charge consultations six days a week with our licensed family law attorneys who can answer your questions and address your concerns.

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Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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