Fault-based Divorce: Insanity
Fault-based Divorce: Insanity
Introduction
Insanity or mental illness is a ground for fault-based divorce in most states, while other states consider it a ground for no-fault divorce. Insanity is a state of mind in which the afflicted person cannot distinguish between right and wrong. It refers to the inability to handle individual responsibilities expected of ordinary persons in the daily course of life. An insane person may endanger his own life and that of others.
Serious mental illnesses, such as schizophrenia and other psychotic disorders, also are considered grounds for fault-based divorce in most states.
Proof of insanity
Proof of insanity usually requires expert psychiatric testimony. The insanity must be incurable, and the person must be proved to have been insane at the time the divorce petition was filed. If the insanity is incurable and has persisted continuously for a sufficiently long time, then the person's spouse likely is eligible for divorce on the ground of insanity.
An affidavit by the mentally ill person's treating physician to the effect that he or she suffers from incurable and permanent insanity often is accepted as sufficient evidence to justify divorce on the ground of insanity. An order by appropriate legal authorities declaring a person insane before the divorce action commences, or a court finding based on competent witness testimony that the insanity is incurable, is sufficient to grant a divorce in many states.
Period of insanity
The period of insanity sufficient to support a divorce decree varies from state to state. Some state laws provide that insanity must be incurable and permanent in nature. Others require continuous confinement in a mental hospital for at least 18 months before the divorce action commences, along with a reasonable expectation that the mentally ill person will remain under inpatient care for at least 18 months after the action is filed. Statutory reforms in the latter part of the last century shortened the duration of mental incapacity required to justify divorce.
Copyright 2010 LexisNexis, a division of Reed Elsevier Inc.
