Mental Health Issues in Virginia Divorce and Custody Cases

Posted on Jun 30, 2014 by Katie Carter

Divorce is hard. And life is hard. Things are constantly changing, there are a number of different setbacks periodically, and we all sometimes suffer disappointment from a sudden change in plans, with or without a divorce on the horizon. Markets crash, unexpected emergencies arise, and accidents inevitably happen, particularly when we don’t feel exactly prepared to handle the consequences. It’s enough to make any woman feel a little crazy.

It’s probably an easier thing to talk about now than ever before, but mental health is an issue for a number of Americans. It’s nothing to feel bad or embarrassed about, and you should definitely seek professional help if you start feeling like something just isn’t right. Whether what you’re feeling is depression, anxiety, mood swings, or something else, you know how you’re feeling better than anyone. You know what’s normal and what’s not, and, if you’re feeling badly, there may be a medical reason. More importantly than that, there may be something relatively quick and easy that you can do to get back on track to start feeling better as soon as possible.

Even if what you’re experiencing is something a little more serious than a general struggle with anxiety or depression, you should seek medical attention. Whether you suffer from bipolar disorder, schizophrenia, multiple personalities, or some other condition, you should get treatment.

Depending on what is bothering you, there are a number of different fixes you might want to consider. Of course, there are pharmaceutical fixes—we’ve all seen the commercials on television and the advertisements in magazines or popping up on your sidebar when you perform searches on the Internet. If you’re opposed to the thought of taking a pill, though, there are other alternatives, too. When my clients tell me that they’re experiencing anxiety or depression (or say that they’re feeling things that lead me to believe they may be suffering from anxiety or depression, though I’m obviously not a fit person to medically diagnose anyone), I always encourage them to speak with a therapist.

I’m not a doctor, so what do I know? Well, I don’t know much medically, but I do know that it’s best to take a proactive stance with respect to your health. I also know that the my clients feel a lot better when they take their health into their own hands and actually do something about it.

There’s no question that divorce and custody cases bring on a ton of stress, and it’s totally understandable if you need a little extra support to make it through the process in one piece. Even without a divorce or custody case, life is tough. You need to know that it’s okay to ask for help.

One of the first questions I get when I start talking about the benefits of talking to someone or seeking a little extra medical help is whether the judge will think that they are crazy if they’re taking medication or seeing a therapist.

Will the judge hold it against me in my divorce or custody case if I need mental health help?

Most of my clients are very worried that seeing a doctor or taking a pill for a mental health related medical condition makes them “crazy.” They’re especially worried that the judge who is responsible for determining how everything in their cases will be divided (from their assets to their children) will be prejudiced against them simply because he knows that they take antidepressants or anti anxiety medication. They think that there is this general presumption in the world at large that they’re supposed to be strong enough to handle all their disasters and deal with all their demons, all the time.

I don’t think that’s either realistic or true, especially not today. Maybe once upon a time there was a stigma associated with some mental health conditions, but today I think it’s pretty safe to say that the world in general recognizes that these are not personality flaws but legitimate medical conditions that need to be professionally, consistently, and effectively treated.

In the cases that I’ve seen and been a part of, I have seen a lot of tolerance from judges with respect to mental health issues. The general feeling is that the most important thing a person can do is take care of themselves, whatever the issue. People who are taking medication or talking to a therapist tend to be better balanced, more responsible people who take care of their children and other responsibilities effectively.

Mental Health in Divorce

Before we talk about what happens in divorce cases where mental health is an issue, I want to talk a little bit about how divorce cases in Virginia work. You can get divorced in essentially two different ways: you either settle your divorce by signing a legal contract called a separation agreement, or you litigate your divorce in the court system.

You can negotiate a separation agreement in a number of different ways. You can do it by hiring an attorney, going to mediation, moving forward with a collaborative divorce, or even by drafting and signing an agreement on your own, without hiring any kind of professional to help you. When you negotiate an agreement, you have a lot of freedom. What matters is pretty much just what you say matters, so your mental health really isn’t going to be an issue. You and your soon to be ex are going to come up with some kind of agreement that settles the assets and liabilities in your marriage, and how the “stuff” is divided really has nothing to do with your mental health. As a partner to the marriage, you deserve your marital share. The law doesn’t say that you deserve your marital share unless your husband thinks you’re crazy. It doesn’t say that you get less of the house or the retirement accounts because you take medication. There is nothing anywhere in the statutes that says anything about getting less because of your mental health condition.

A separation agreement case is easy. If you don’t like the agreement that you’re presented with, you don’t sign it. You negotiate, revise, and adjust terms until they suit your needs. Most separation agreements reflect some sort of property division close to 50/50 between husband and wife, and that’s out of necessity—if the agreement wasn’t close to 50/50, there would be no point signing it. The parties would take their chances in court and hope to end up getting more.

In a litigated divorce, on the other hand, the judge ultimately has the power to decide how everything will be divided. In a divorce trial, the judge will listen to evidence and witnesses and, eventually, determine how everything will be split between husband and wife.

The judge isn’t going to automatically penalize you because you have been diagnosed with a mental health condition. In fact, as far as your divorce case goes, it’s pretty unlikely that your mental health will factor in at all, except possibly as it relates to your spousal support award.

Will my medical needs affect my child or spousal support award?

Child support is a calculation based on a formula. Your mental health is not a factor that will affect how much child support you receive.

I have talked about spousal support at length before, so if you want any more information about spousal support, how it works, or whether you’ll receive it, I've written a two part article that should pretty much answer all the questions you've got: Here's part one, and part two. It's pretty complicated,but that should tell you pretty much everything you'll need to know!

Your mental illness could affect your spousal support award, though, because it’s one of the factors that the court considers in the statute, especially if your marriage was long term (roughly twenty years or more) and your mental illness affects your ability to work. It’s probably especially relevant if your husband married you knowing about your mental illness, because that would suggest to the judge that he knew what he was getting into beforehand. Still, in lots of cases, he didn’t know about the mental illness before you got married (and maybe you didn’t, either). That isn’t the end of the world, it’s just part of the analysis that the court will consider.

Obviously, if he has been supporting you because of your illness all along and you’re unable to work because of it, it will give the court a lot of information about what needs to happen out of fairness to both of you. In that kind of situation, it wouldn’t be fair to just cut one party off from the financial support of the other. But it’s probably also not fair to make that other person continue to support the sick person indefinitely.

To know for sure how your mental illness (or your husband’s mental illness, if the shoe is on the other foot) might affect your award of spousal support, you should talk to an attorney one on one. Nothing is automatic, so you’ll want to be sure you get up to date information about your rights as soon as possible.

Mental Health in Custody Cases

Custody cases are a whole different ball game. A custody case may be part of your divorce, or it could be a legal action that takes place independently of a divorce.

Obviously, your mental health (and the mental health of your child’s father) is a legitimate issue that the court will consider. In custody cases, the court considers ten basic factors to determine what kind of custodial arrangement is in the “best interests of the child.” To read the factors in their entirety, click here. As you can see, the physical and mental condition of the parents is something that the court must consider.

However, just because you’ve been diagnosed with some condition or other doesn’t mean you aren’t a good parent. It doesn’t mean you’re crazy. It certainly doesn’t mean that you won’t get custody of your children because of it.

If you’re un medicated or behaving erratically, it probably will matter. But for a person whose condition is well controlled by medication or therapy, your condition will not be inherently harmful. Without more evidence of your lack of parental fitness, merely suffering from depression, anxiety, bipolar disorder or some other condition won’t affect your ability to have custody of the children.

Should I tell the judge that I take medication or see a therapist?

In most cases, it’s best to tell the judge the truth yourself, before someone else tells the truth for you and makes it look like you were trying to hide something or get away with something. If you’re honest and up front about your condition, your treatment, and your overall prognosis, it’s obvious that you’re taking control of the situation and placing your ability to parent your child at the forefront.

Show the judge that you’re honest, responsible, and aware, and it’s much less likely that anything that your child’s father can say will confuse the judge or make him feel mistrustful of your testimony.

What will my husband say? Will he be able to hurt my case if he knows what I’m going through medically?

Well, chances are good that your child’s father will say pretty much whatever he can to undermine your case. That’s how these cases tend to work. It’s not nice and it’s not fair, but the tactic of a lot of husbands is to say “She’s a terrible mother, therefore the child would be better off with me,” rather than saying, “She’s good, but I’m better.” You should be prepared for that.

If you have an opportunity to disclose your condition before your child’s father has a chance, that’s definitely best. You can assume that he knows the worst details and he will certainly make sure the court is aware of them, too. Imagine the worst thing he knows about you that he can use against you in court. Now, imagine how, if you had the chance to tell your story first, you could put a positive spin on it.

You know that he’s going to bring it up, so you should be sure to take the earliest possible opportunity to talk about it. Talk about what you’re doing to keep your condition under control. Talk about how you’ve been a great parent through it all. Talk about how supportive your network of family and friends have been. Talk about the good things, and minimize the bad. It’s okay if you slipped up a little; what matters to the court is that you’ve gotten everything back on track and that you’re in a position to be the best possible caretaker for the child. The more open and honest you are, the less damaging your child’s father’s testimony will be.

The bottom line is that you shouldn’t be afraid to get the help you need because you’re afraid of what someone might say. Ultimately, you know better than anyone how you should be feeling, and you should absolutely be prepared to take steps to take care of yourself. Not only for yourself, but for your family and your children. If you need to talk to one of our experienced Virginia divorce and custody attorneys, give our office a call at (757) 425-5200.