Based upon my experience as a family law attorney, it seems to be more and more apparent that mental illness affects far more people and is more common than anyone realizes. In this article I’ll discuss how mental illness affects divorce and custody proceedings.

Arizona is a no-fault state. It does not matter to the Courts why either party would like the divorce. This allows the parties to get divorced without the Court having to determine which party caused the dissolution to occur. While a party is no longer required to provide a cause, it would be naïve to ignore that mental illness can cause strain on a marriage, which results in divorce. This article will discuss how mental illness can affect the parties in a divorce and or custody proceeding.

Now that we have discussed that while there is no necessity/requirement for the parties to establish a cause for the dissolution, that a major cause to dissolution is mental illness.

SPOUSAL MAINTENANCE

Mental illness impacts spousal maintenance significantly. Spousal maintenance is governed by A.R.S. 25-319. There is no magical formula for spousal maintenance but there are factors that the Court uses to first determine if an award is necessary and then how much and for how long. The statute and factors are listed below:

25-319. Maintenance; computation factors

  1. In a proceeding for dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of the marriage by a court that lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse for any of the following reasons if it finds that the spouse seeking maintenance:
  2. Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse’s reasonable needs.
  3. Is unable to be self-sufficient through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to be self-sufficient.
  4. Contributed to the educational opportunities of the other spouse.
  5. Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.
  6. The maintenance order shall be in an amount and for a period of time as the court deems just, without regard to marital misconduct, and after considering all relevant factors, including:
  7. The standard of living established during the marriage.
  8. The duration of the marriage.
  9. The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance.
  10. The ability of the spouse from whom maintenance is sought to meet that spouse’s needs while meeting those of the spouse seeking maintenance.
  11. The comparative financial resources of the spouses, including their comparative earning abilities in the labor market.
  12. The contribution of the spouse seeking maintenance to the earning ability of the other spouse.
  13. The extent to which the spouse seeking maintenance has reduced that spouse’s income or career opportunities for the benefit of the other spouse.
  14. The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children.
  15. The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse’s ability to meet that spouse’s own needs independently.
  16. The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and whether such education or training is readily available.
  17. Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.
  18. The cost for the spouse who is seeking maintenance to obtain health insurance and the reduction in the cost of health insurance for the spouse from whom maintenance is sought if the spouse from whom maintenance is sought is able to convert family health insurance to employee health insurance after the marriage is dissolved.
  19. All actual damages and judgments from conduct that results in criminal conviction of either spouse in which the other spouse or child was the victim.
  20. If both parties agree, the maintenance order and a decree of dissolution of marriage or of legal separation may state that its maintenance terms shall not be modified.
  21. Except as provided in subsection C of this section or section 25-317, subsection G, the court shall maintain continuing jurisdiction over the issue of maintenance for the period of time maintenance is awarded.

I have emphasized in bold the portions that are most directly affected by mental illness above. We’ll start our discussion with (A)(2): Is unable to be self-sufficient through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to be self-sufficient.

While mental illness is quite common there are times when it is debilitating to the point where that individual is unable to be self-sufficient through appropriate employment. While these individuals may qualify for disability through the social security administration, they may also be entitled to an award of spousal maintenance. A mental illness diagnosis does not alone satisfy the requirements of A.R.S. 25-319, but it can and should be used in a spousal maintenance determination by the Court.

  1. The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance.

(A)(3) deals with the earning ability of the spouse seeking spousal maintenance, which can be affected by mental illness. (A)(3) also requires the Court to consider the physical and emotional condition of the spouse seeking maintenance, which also can be affected by mental illness. Once again, millions of Americans that are dealing with/suffering from mental illness are high earners and are physically and emotionally able to support themselves. There are, however, those who cannot and therefore support is awarded.

  1. The ability of the spouse from whom maintenance is sought to meet that spouse’s needs while meeting those of the spouse seeking maintenance.

(A)(4) discusses the spouse from whom maintenance is sought. Mental illness can significantly impact that spouse’s ability to pay maintenance or continue to pay maintenance. While this is not a discussion of the modification of spousal maintenance, newly presenting mental illness can lead to a modification if the spouse that had previously been ordered to pay maintenance does not have the same earning ability due to symptoms of mental illness reducing his/her ability to earn. If the spouse that is receiving maintenance had newly presenting mental illness or the symptoms increase reducing the receiving spouse’s ability to earn, this could result in an increase in an award through modification or even an indefinite award if the illness creates a complete inability to work.

  1. The comparative financial resources of the spouses, including their comparative earning abilities in the labor market.

If you are sensing a theme here, there is. The parties’ comparative earning abilities are discussed in many of the factors of A.R.S. 25-319, including (A)(5).

The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse’s ability to meet that spouse’s own needs independently.

(A)(9) is more of the same.

As you can see an individual’s ability to earn is a major factor, and rightfully so, of whether or not that party should receive spousal maintenance. Any mental or physical condition that can affect an individual’s ability to earn is considered. As explained earlier, while there are many people that have mental illness and are more than self-sufficient, there are other individuals that cannot.

LEGAL DECISION-MAKING AUTHORITY/PARENTING TIME (CUSTODY)

Mental illness also has a major impact on custody proceedings whether they are tied to a divorce or not. In Arizona, the Court’s main concern when making a legal decision-making authority and or parenting time order is the best interest of the child or children in question. Mental illness can impact both a parent’s ability to make decisions for a child, as well as, exercise parenting time. Let me first say that while mental illness can impact a parent’s ability to make decisions, a mere diagnosis does not mean that a parent does not have the ability to parent. The Court must determine that the illness impairs the parent’s ability to make decisions for the child to the decree that the negative effect outweighs the parent’s right to be involved with the decision making process. A.R.S. 25-403 contains the factors that the Court looks at to make his/her determination as relates to legal decision making authority and parenting time:

5-403. Legal decision-making; best interests of child

  1. The court shall determine legal decision-making and parenting time, either originally or on petition for modification, in accordance with the best interests of the child. The court shall consider all factors that are relevant to the child’s physical and emotional well-being, including:
  2. The past, present and potential future relationship between the parent and the child.
  3. The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings and any other person who may significantly affect the child’s best interest.
  4. The child’s adjustment to home, school and community.
  5. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.
  6. The mental and physical health of all individuals involved.
  7. Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.
  8. Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.
  9. Whether there has been domestic violence or child abuse pursuant to section 25-403.03.
  10. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.
  11. Whether a parent has complied with chapter 3, article 5 of this title.
  12. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.
  13. In a contested legal decision-making or parenting time case, the court shall make specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child.

While mental health can impact many of these factors, we’ll focus on the two emphasized above with some more detail here:

The past, present and potential future relationship between the parent and the child.

Mental illness can directly affect all of an individual’s relationships including those with his/her children. The Court will have to look at how much, if any, the illness is affecting the relationship between parent and child. Many times mental illness has no effect.

The mental and physical health of all individuals involved.

The Court must be concerned with the physical and mental well-being of the child/ren involved. If a parent is unable to adequately care for a child due to his/her mental illness the Court must due what is in the best interests of the child.

Mental illness is a major factor in divorce and custody proceedings. Unfortunately, mental illness/health can and often is used negatively by litigants and attorneys. If you have concerns or would like to now how mental illness affects your personal case/situation I recommend you speak with an Arizona Family Law Attorney. While this article is not an exhaustive explanation of every way that mental health can impact divorce and/or custody proceedings, I hope it is helpful.