Michigan is a no-fault divorce state, which means simply that family law our state says you are entitled to a divorce if you want one. Neither party needs to have done anything “wrong,” like adultery or abandonment, and you don’t have to have a basis for a divorce(e.g., incapacity or mental illness) other than your desire to separate.
In fact, you may obtain a divorce even if your spouse does not agree. However, to enter into a divorce, as is the general rule for court filings, the parties must be competent or have “mental capacity.” For most cases, this means that you understand and consent to what you are doing (although there are more specific standards for creating a will or executing a healthcare power of attorney).
Michigan law presumes adults have mental capacity, so it’s not necessary to prove you are competent to begin a divorce case. The difficulties arise when an individual who may not be competent files for divorce, where the respondent in a divorce action lacks adequate mental capacity, or during the custody portion of a proceeding where one or both parties contest the other parent’s competence to care for their child or children.
Issues With a Potentially Incompetent Petitioner
Just because a spouse lacks competency doesn’t mean that he or she cannot pursue a divorce proceeding. Instead, Michigan law provides that “a mentally incompetent spouse can sue for divorce by and through her guardian” who represents the interests of the petitioner in the divorce action.
This isn’t the situation in other states without a specific rule or statute that allows guardians to file divorce actions on behalf of incompetent plaintiffs. In those jurisdictions, the traditional common-law rule is that because of the intensely personal nature of the action it is improper to permit a mentally incompetent person to file for divorce through a representative. In nearby Illinois, for example, the state supreme court denied a representative’s attempt to obtain a divorce on behalf of an incompetent plaintiff because that state has no law permitting such an action.
Issues With a Potentially Incompetent Respondent
If a petitioner who does not suffer from mental health problems files for divorce against a mentally ill or addicted spouse, the court must appoint a guardian ad litem (a legal advocate) to represent the mentally ill person’s interests in the proceedings. The role of the guardian is to help ensure that the respondent is fairly represented in the proceedings and receives a settlement, alimony or maintenance (“spousal support”), or custody determinations that are appropriate to his or her mental capacity.
Spousal support is not determined by a set formula; courts decide what is appropriate on a case-by-case basis. A court takes into account factors such as“the length of the marriage, the parties’ ability to pay, their past relations and conduct, their ages, needs, ability to work, health and fault, if any, and all other circumstances of the case.” A spouse’s mental incompetence or other mental health issues may be a significant deciding factor in the amount and duration of spousal support awarded by the court.
Competence and Custody Issues
In determining legal and physical custody of children in a divorce, as well as fair child support awards, Michigan family courts consider the welfare of the children above all other considerations. State law sets forth 12 categories to assess the “best interests of the child,” which in addition to the “mental and physical health of the parties involved,” include the following factors closely related to a parent’s competence:
- The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any; and
- The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
If the court finds that custody or visitation with a mentally ill or incompetent parent would endanger a child, it can deny a parent custody rights or mandate restrictions. Some common restrictions are supervised visitation, the presence of a third party at visitation exchanges, or prohibition of overnight visits until certain requirements (like chemical dependency treatment or mental health counseling) are satisfied.
Mental health and competence issues can complicate the divorce process and increase an already stressful situation. An experienced attorney can help you navigate the court system and work towards a successful resolution for you and your family.