Establishing the existence of mental illness during divorce can be a double-edged sword. Unfortunately, mental illness is fairly common among not only divorcing spouses but the entire US population. Recent studies have shown that about 20% of all Americans suffer from at least some form of mental illness – ranging from debilitating diseases to relatively mild anxiety. The root cause of this rise in mental illness is not clear, but it is an issue that many spouses consider as they approach divorce. How should mental illness factor into divorce strategies?

Mental Illness Has the Potential to Provide Financial Benefits

If a spouse successfully establishes that they have mental illness, there is a chance that they may experience certain financial benefits. In many equitable distribution states, the spouse’s mental health is one of the many factors that family courts consider during the property division process. Those who have documentable cases of mental illness may receive a higher portion of the marital estate in order to “cover” the various disabilities and struggles associated with these health concerns. 

Mental illness is also a factor that courts consider during alimony calculations. A spouse with mental illness presumably has a greater need for spousal support than a healthy spouse. Based on these factors, it may be advantageous for a spouse to claim that they have some form of mental illness. As long as they can prove that their health issue affects their future wealth or earning ability in some way, they might receive higher support and a greater share of the marital property. 

Mental Illness Has the Potential to Affect Custody

On the other hand, however, mental illness can have negative effects in the context of custody. A spouse with mental illness may struggle to pursue physical and legal custody. Their mental health issues might prevent them from caring for their children in a reliable manner, and the court may, therefore, grant the healthy spouse primary physical custody. They might also lose the ability to make major decisions about the child’s upbringing in the context of religion, education, and health care. 

Perhaps most crucially, a parent who loses physical custody also presumably loses access to child support. If the parent is not actively caring for the child, there is no reason to provide them with the necessary funds to cover child-raising expenses. 

Should Spouses Prove the Existence of Mental Health Issues?

If neither spouse mentions mental health issues, the family courts may never discover them. After all, medical records are at least somewhat confidential – and they may only be revealed after specific requests during discovery. 

Spouses should think very carefully about whether they want to establish their own mental health issues or their ex’s. Proving the existence of these issues may provide the mentally ill parent with greater access to marital property and alimony, but the spouse may also lose custody rights and, therefore, child support income. Of course, this situation changes dramatically if the marriage does not produce children.