Texas Divorce and the Mentally Ill Spouse

Most divorces in Texas are no-fault divorces. A couple simply can’t get along. But Texas also allows at-fault divorce for several reasons, including cruelty, abandonment, adultery and mental illness. 

On this website we’ve written about the challenges of divorcing someone who is a sociopath or a narcissist, or who has a histrionic or borderline personality disorder. These personality disorders pose specific challenges in the divorce process

But a personality disorder is not the same as a mental illness. People with a personality disorder are usually able to function in day-to-day society, sometimes very well. People with a severe mental illness, like schizophrenia, severe depression, or multiple personality disorder, may have great difficulty with daily activities. 

This can become an overwhelming challenge for a spouse. 

Texas At-Fault Divorce and Mental Illness

If a spouse chooses an at-fault divorce based on a partner’s mental illness, they must prove that their spouse has been confined in a mental hospital for at least three (3) years. Doctors must also have diagnosed the person as permanently insane. Realistically, these two criteria can pose difficulties. 

People are rarely institutionalized for lengthy periods of time anymore. With the advent of anti-psychotic, anti-depressant, and anti-anxiety medications, even people with severe mental illness are often able to leave the hospital within days or weeks of treatment. Extended hospitalization can be a few months up to a few years but this is much less common.

As for a diagnoses of “permanently insane,” even a person with schizophrenia, which is a lifelong illness, will not display the disorder all of the time. 

Texas No Fault Divorce and Mental Illness

You do not need to prove fault to get divorced in Texas. People seeking divorce can simply testify that they do not get along and they do not expect reconciliation. 

If one spouse is mentally ill, the family court judge will appoint a guardian ad litem to protect their interests during the divorce. The divorce will continue with the guardian ad litem presenting the case for the ill party. 

A person with a mental illness can seek the divorce. In a 1988 case before the Texas Supreme Court (Wahlenmaier v. Wahlenmaier, 762 S.W.2d 575), the court said that a mentally incapacitated person still has a right to obtain a divorce. In that case, a woman filed for divorce but became mentally ill and could not testify on her own behalf. A guardian ad litem was appointed to represent her interests and her children were allowed to testify on her behalf.

Mental Health and Child Custody

Mental illness can have an impact on a child custody decision. The court’s primary concern is the well-being of the child. Having a positive relationship with and the support of both parents is considered to be in the best interest of the child. 

  • If the mentally ill parent is able to meet their child’s emotional, physical and mental needs, they may be granted custody or visitation. 
  • If the parent’s mental illness is severe enough that they cannot provide a stable home environment and meet their child’s needs, they may still be given supervised visitation. 
  • If the parent’s mental illness results in abuse, neglect, or other negative effects on the child, parental rights may be terminated. 

Talk to a Fort Worth Attorney About Divorce

If mental illness has impacted your family and you can no longer live together, get experienced legal help. Call Ft. divorce lawyer V. Wayne Ward: 817-789-4436