How Do Mental Health Issues Affect Divorce Proceedings in Illinois?

 Posted on July 11, 2019 in Uncategorized

Mental health issues are prevalent in today’s society. According to the National Alliance on Mental Illness (NAMI), millions of Americans are affected by mental health conditions each year. A mental illness such as bipolar disorder, schizophrenia, or depression can be very challenging for a married couple and a family in general. In many cases, mental health issues can cause a couple to grow apart, and they may ultimately lead to divorce. Illinois is a no-fault divorce state, and irreconcilable differences is the only recognized legal basis for divorce. While the issue of mental illness is not a legal reason to file for divorce, it can significantly impact the divorce proceedings. 

Orders of Protection

In some divorce cases, a person’s mental disorder could lead to dangerous or even violent behavior. If someone fears for their own safety or the safety of their child, then they should take immediate action. This can include obtaining the following orders of protection: 

1. Emergency Order of Protection: An Emergency Order of Protection (EOP) is a court order to protect the spouse who filed for it (known as petitioner) from harm by the other spouse named in the order (known as the respondent). An EOP goes into effect immediately upon approval by a judge, and it will last for 14 to 21 days. Due to the risk of abuse or violence, the law does not require the respondent to be notified about this “ex parte” hearing. When it issues an EOP, the court sets a hearing date for a Plenary Order. 

2. Plenary Order of Protection: A Plenary Order is issued by a judge after a hearing in which both the petitioner and the respondent will be able to plead their case. If granted, a Plenary Order can last for up to two years. Even though the alleged abuser must be notified about the hearing, he or she may refuse to appear in court. In these cases, a default judgment will likely be entered against them, and a Plenary Order may be issued.

3. Interim Order of Protection: An Interim Order may be granted to a petitioner by a judge after the respondent has been served in order to provide protection until a hearing for a Plenary Order can be held. This order can last up to 30 days.

Child-Related Issues

For a divorce case that involves mental illness, emotions can definitely run high for all parties, especially if the couple has children together. When making decisions regarding the allocation of parental responsibilities (child custody), the court will always take into account what is in the best interests of the child. This includes considering a spouse’s documented history of mental illness. 

Illinois courts may terminate parental rights when a parent who suffers from a mental illness cannot perform basic parental duties. In such cases, a mental health professional must testify that the parent is mentally ill, with no reasonable hope of recovery in the future. However, a mental disorder does not automatically exclude one parent from parenting time (visitation) or even parental responsibilities.

Marital Property and Spousal Support

In Illinois, a spouse’s mental health cannot directly affect the division of the marital estate. However, a court may determine that the marital property should be split based on the health, income, and employability of each spouse. For example, a judge may award a mentally ill spouse who has a lower earning potential a larger share of the marital estate. In addition, spousal maintenance may be awarded to provide for a spouse’s future living expenses.

Contact a Cook County Divorce Lawyer

Mental disorders can often impact relationships negatively and lead to divorce. If you are getting divorced, and you or your spouse has a mental illness, it is important to hire a lawyer who understands Illinois’ divorce laws. The compassionate Oak Park family law attorneys at Wakenight and Associates, P.C. will help you understand your rights and advocate on your behalf throughout the divorce process. Call 708-480-9651 today for a free consultation. 

Sources: 

https://www.nami.org/learn-more/mental-health-by-the-numbers

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=6000000&SeqEnd=8300000