Legal solutions exist for spouses who want a peaceful divorce, even where one of them suffers from serious emotional issues or mental illness.
In a collaborative divorce and in some mediated divorce cases, the divorcing couple selects not only attorneys for legal help, but also mental health professionals as divorce coaches. These coaches assist with effective communication between the divorcing couple. As experienced marriage and family therapists or psychologists, they provide education and support to clients and professional team members to facilitate the educated and peaceful resolution of issues.
Where one of the spouses suffers from mental illness, this may involve more heightened involvement of the divorce coaches. In many cases, depending upon the depth of emotional issues and even where mental illness exists, the clients’ goals can still be amicably achieved.
Appointment of a Guardian Ad Litem in Collaborative Divorce or Mediation Cases:
In cases where a spouse’s mental illness limits his or her capacity to make decisions about divorcing, or about issues in the case, guardian ad litem can be appointed to stand in the shoes of that spouse in the divorce case.
Guardians’ ad litem are sometimes appointed in litigated divorce cases as well. This can occur even where one or both spouses oppose such an appointment.
In collaborative divorce cases, the clients can ask the court to appoint a specific individual, ideally an attorney trained and experienced in consensual dispute resolution, to act as guardian ad litem for the spouse in need of that extra layer of protection.
Most courts have a policy of encouraging parties to divorce to resolve their issues without the need for extensive court involvement. Some counties have a department or judicial officer dedicated to processing collaborative law divorce cases. Depending upon your local family court, the presiding judge or judicial officer assigned to handle collaborative cases may be willing to order the appointment of a guardian ad litem by agreement of the clients. In that case, no court hearing would be required. The collaborative attorneys would, of course, need to provide sufficient information about the situation to satisfy the court that appointment of a guardian ad litem is necessary as defined in the relevant statutes. (In California, the relevant statutes are Code of Civil Procedure Sections 372-373. The statutes allow for the appointment where the court deems it expedient when a client “lacks the capacity to make decisions.”) Some courts may agree to keep the facts supporting the need for appointment in a confidential file, giving a layer privacy to the effected client. Best practice would be to have the guardian ad litem stipulate to be bound by the collaborative stipulation.
Even where a spouse may lack the capacity to make some decisions in the divorce case, they may still have ample capacity to agree to appointment of the guardian ad litem.
Value of the Collaborative Neutrals to the Effectiveness of the Guardian Ad Litem:
Once the guardian ad litem is appointed, he/she works with the subject spouse and the rest of the collaborative or mediation team. The goal is to ensure that ample information exists to support the couple’s intended agreements, with an eye toward protecting the spouse who may be disadvantaged by his/her illness.
In most collaborative divorce cases, and in some mediation cases, the clients select a neutral financial specialist at the beginning of the case. The role of the financial specialist is to assist them in gathering and understanding all necessary and important financial information in the case. The idea is that the clients are not making long term financial decisions without the facts necessary for education decisions. This can be critical to the guardian ad litem, who must develop a full understanding of these facts and related decisions in the divorce case.
Where the clients have minor children, they generally select a neutral child specialist at the beginning of their case. That specialist interacts with the children without “involving” them in the divorce issues, provides education and feedback to the parents, and assists them in creating a parenting plan. Again, where guardian ad litem has been appointed, he/she has the benefit of receiving information through this team member. Notably, the neutral child specialist is the only collaborative team member who has direct interaction with every member of the clients’ family
Collaborative professionals and mediators can assist clients in successfully resolving their divorce issues without court intervention. The existence of serious emotional issues or mental illness does not have to preclude them from achieving their collaborative goals. Appointment of a guardian ad litem may enable them to complete their divorce case in a way that they feel is best for their unique family.