Yaffa Family Law Group
By: Doreen Yaffa

Understanding The Implications of Mental Health In Divorce


Over 40 million people in the United States suffer a mental illness in a given year. When it
comes to divorce, a spouse’s mental health can impact anything from property division to child

As Florida is a “no-fault” state, a spouse cannot seek a divorce based on the individual’s mental
incapacity unless that spouse has been incapacitated for at least three years. Individuals are
considered incapacitated if they suffer from a mental or physical disability to the extent they
can’t make independent legal decisions, such as signing contracts, marrying, or divorcing. In a
case such as this, a judge will appoint what is called a “Guardian Ad Litem” to represent the insane
spouse’s interest in their divorce.

Mental health can not only interfere with an individual’s day-to-day life, but also the outcome of
their divorce. An individual’s mental health may interfere with their ability to keep a job,
maintain income, and therefore support themselves or their family. If this is the case, a judge
may award the individual additional alimony or a larger share of the assets if they are not able to

If you and your spouse have children, and one of you are suffering with mental health issues, a
judge will likely evaluate the circumstances and determine the custody arrangement that is best
suited for your family and your child’s needs. Florida courts create a child custody and visitation
schedule based on what is in each child’s best interest. Parents with more severe mental health
issues may face greater barriers to obtaining custody as it may interfere with their ability to care
for the child, take the child to school/extracurriculars, drive, etc. Being mentally ill isn’t a bar to
gaining custody of your child, but when the mental illness negatively affects their parenting
ability, a court may structure custody and visitation accordingly.

If a spouse’s working potential is affected by their mental health, a judge may award that spouse
alimony depending on the length of the marriage. In Florida, a short-term marriage is one that
lasts less than 7 years, a moderate-term marriage lasts between 7 and 17 years, and a long-term
marriage lasts more than 17 years. If a couple is divorcing after a long-term marriage, the court
can order the healthy spouse to pay permanent alimony, which has no end date, to the mentally
ill spouse.

If you or someone you know suffers from mental health, please contact a help center or a mental
health counselor.