There are two types of divorces in Texas: the 1st is a divorce based on no-fault grounds and the 2nd is a divorce based on fault grounds. A no-fault divorce is a relatively new addition to the family laws Of Texas where married people can get a divorce without stating a specific reason as to why the divorce is being sought. Irreconcilable differences, discord, or conflict of personalities with no belief that reconciliation is likely are sufficient causes to get divorced in Texas. For many years, no-fault divorces were not available in Texas but as of a few generations ago a change was made to the divorce laws which allowed them.
On the other hand, you may also get divorced in Texas while alleging specific grounds for getting a divorce. The reason why you would mention specific grounds for divorce would be to have those circumstances taken into account when dividing up Community property or parenting time, rights, or responsibilities about your children. Sometimes the grounds for divorce are so significant that they will play a role in determining the outcome of your case.
Fault grounds for divorce include adultery, cruelty, abandonment, various financial infidelities as well as something called confinement in a mental institution. A Texas family court may grant your divorce in your favor if at the time your divorce case was filed your other spouse has been confined to a state mental hospital or similar facility. That confinement must have been ongoing for at least the past three years and your spouse must be a mental disorder is so severe that an adjustment is unlikely, or relapse would be probable if an adjustment is made.
For the remainder of today's blog post, I would like to walk with you through this subject and talk about some issues that may be relevant in your life if you are dealing with a situation where your spouse has been receiving inpatient behavioral or mental health therapy from a residential facility or hospital. While so many people in our community deal with mental health issues of various sorts I think there are relatively few resources available for those who are going through a divorce with a spouse who is in this type of situation. If you have any specific questions about your particular circumstances then I would recommend you contact one of our experienced family law attorneys today for a free of charge consultation.
What could happen regarding child custody issues if your spouse suffers from a mental illness?
If you are a parent whose spouse is suffering from a mental illness then you are likely extremely aware that you have had to make sacrifices to care for your children while also caring for the needs of a mentally ill spouse. Suffering from a range of mental impairments or conditions related to cognitive problems is a huge burden 4 anyone. I have a great deal of sympathy and empathy for those of you 2 have mental impairments or suffering due to a spouse's condition.
With that said, if you have filed for divorce from a person who has a mental illness then you need to be aware of how a family court in Texas would be likely to view the issue from the perspective of child custody, Visitation, and possession. As with any divorce case involving children, a judge would be most concerned with making decisions that are in the best interest of your children. Very bluntly, this means that decisions will be made to benefit your children primarily with secondary concerns being what is best for you and what is best for your spouse.
If your spouse is institutionalized or is incapable of caring for him or herself then a judge would look upon this subject with an eye for detail in determining custody arrangements and conservatorships rights and duties. The most basic aspect of the best interest determination when it comes to your children is for a judge to be able to decide that your spouse is capable of providing an environment for your children that is conducive to their development emotionally and physically.
Having a mental illness, in and of itself, does not prohibit a parent from being able to exercise their rights to custody, visitation, and possession of your child. I would not enter into a divorce and assume that because you have alleged your spouse to be suffering from a mental illness that he or she will not be able to remain "competitive" when it comes to parenting rights and responsibilities.
A judge will need to make a competency determination if your case reaches the family court. Is your spouse competent to parent your child? What evidence do you have that he or she is incompetent and/or unwilling to receive treatment that would otherwise render him or her ability to parent successfully? This can be a challenge for a judge and outside assistance may be sought in the form of having an amicus attorney or ad litem attorney intercede and conduct interviews and home evaluations of your spouse to determine competency. That attorney will make recommendations after collecting information and evidence to assist the judge in their fact-finding responsibilities.
The result of a mental illness for a parent as far as parenting responsibilities/rights/time could be that their custody rights become curtailed and limited. Final decision making may be your responsibility when it comes to subjects like education and health matters. Your spouse may not be in a position to make decisions for their well-being, not to mention your child. Your spouse may be awarded graduated parenting time if he or she reaches certain benchmarks associated with receiving the care that he or she needs.
However, the overarching goal of a family court judge will be to arrive at decisions in the divorce or child custody case that allow your child an opportunity to continue their relationship with both of their parents. Do not assume, therefore, that a judge will view your case as one where the burden of proof is on your spouse to prove their competency as a parent. Rather, the burden will be on your shoulders to prove that your spouse is not competent to act as a parent.
What types of awards may a court make regarding custody of your child in a family law case?
If your spouse does suffer from a form of mental illness and is determined by a judge in your family law case not to be in a position to care for your children on a full-time basis then two possible outcomes could result as far as your conservatorship situation is concerned. First, you could be named as the primary conservator of your children. The primary conservator has possession of the kids most of the time and your spouse would be awarded weekend visitation as well as visitation during the holidays.
The other conceivable option would be that you would be named as the sole managing conservator of your children. The vast majority of divorces see the parents involved named as joint managing conservators. This is where we get the term “joint custody” from. Joint conservators share very equally in the decision-making capabilities for their children as far as educational, health and other important life areas are concerned. Joint conservators function as a team when it comes to making decisions. Many of the rights you have about your child are held in tandem with your spouse.
On the other hand, sole managing conservators can make decisions on behalf of their children without consulting with the other parent, depending on the exact wording of their final decree of divorce. Having limited visitation rights is another hallmark of a sole managing conservatorship. Your spouse may end up with visitation only for short periods or even visitation that must be supervised by a third party.
The emotional and financial stability of your spouse will be considered in large part when determining conservatorship rights/duties as well as visitation rights. Keep in mind that your spouse’s residence will need to be conducive to raising children. Many times mentally ill people are unable to perform basic habits of self-care, not to mention caring for others. While your spouse may want to be able to care for their children consistently their mental illness may prevent him or her from doing so.
One important thing to take note of in this regard is that parents can transform themselves through diligent mental health services. If your spouse can commit to receiving a certain level of care that helps them to balance their mental health issues with their real-life commitments it could be that he or she could be awarded a fairly standard amount of visitation rights. As I mentioned earlier in today's blog post, it could be that your spouse receives more time with the kids in the future as he or she displays a willingness to participate in mental health counseling.
If you are receiving mental health treatment can you postpone your divorce?
This is a question that I receive from time to time from people who are battling with their bouts of mental illness. The question boils down to can you postpone or delay a divorce if you are receiving mental health treatment and do not feel competent to advocate on your behalf. I have even heard people compare it to when a military member cannot have a divorce filed against him or her while he or she is serving overseas.
While I can understand the desire to postpone or delay divorce until you are in a better place mentally the reality is that in Texas you cannot avoid getting divorced by telling the court that you are insane or suffer from a mental illness. Prior court cases in Texas have determined that insanity does not prevent a person from being able to stand for a divorce. Furthermore, there are options in place for another person to be able to step into the divorce case for you and represent you if you are unable to do so.
For instance, if you or your spouse are committed to a mental institution and are not able to act as the party to a divorce then a court in Texas will appoint an attorney ad litem to represent you or your spouse during the divorce case. That attorney ad litem will be able to make decisions for whichever one of you is mentally ill and will be charged with the duty of upholding your rights and defending your interests just as you would if the mental illness was not a part of your life.
Is a history of battling depression enough to cost you parenting time in a divorce?
The one point I would like to make before we get into the subject is that you need to be completely honest with your attorney about any prior mental health treatment you have received. There is a certain stigma associated with receiving mental health treatment that I think is unfortunate. I understand the sensitive nature of this topic and of course understand you not necessarily wanting to divulge a great deal of information to an attorney that you probably don't know all that well.
However, you need to fight against the instinct to keep these sensitive subjects private in a divorce. The fact is that your spouse is likely planning to utilize this information as a part of their case and as a result, you do not want your attorney to be caught flatfooted when accusations of depression or an inability to care for your children come up during the case. You should share this information with him or her from the beginning of your case and discuss any kind of treatment, counseling, or even our impatient care you have received in the past.
We have already talked about how a court may appoint an amicus attorney or an attorney ad litem to conduct interviews of you and make determinations about your suitability as a parent. Being upfront and honest with this person, as well as with the court, can go a long way towards helping you retain as much in the way of rights when it comes to your children as possible. Being honest with the court shows that you are being honest with yourself and are accepting of your condition and willing to take steps to better yourself. By all means, do not stop receiving treatment during your divorce if only to appear more mentally competent.
How to handle matters related to mental health after divorce?
If you have any concerns about your spouse and their history of mental health issues you should do your best to stay vigilant and aware of the circumstances involving that parent and your children. This is true even after the divorce has come to a close. If you become aware of any kind of incidents involving your ex-spouse and their mental health that impact your children you should write down these observations and specify the dates and times of each. Any behavior that you would determine to be unusual or problems with communication should be noted.
While you may not be able to utilize information in your divorce you can utilize it in the future if a modification becomes necessary. Many times circumstances change regarding mental health, either for better or worse, thus necessitating a modification to be filed. If you believe that your possession schedule or conservatorship rights that are shared with your ex-spouse need to be modified then you should make an appointment to speak with one of our licensed family law attorneys as soon as possible. This is especially true if you believe your child's safety to be at risk.
Finally, bear in mind that your ex-spouse may need time for themselves to better their mental health. It is incumbent upon you to be able to keep tabs on the well being of your children both when they are with you and when they are with your ex-spouse. This can be somewhat of a burden aren't you to the extent that most people do not have to be worried about the mental health of their ex-spouse. However, if you bear in mind that doing so is for the betterment of your children I think this is a burden that you would take on without thinking twice.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
if you have any questions about the material contained in today's blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your specific circumstances interact with these laws. We take pride in serving members of our community just like you.