Mental Disability and Divorce
Lots of people get married, and, of those people who marry, a good number will ultimately – eventually – divorce. People who suffer from mental or intellectual disabilities also marry and, as a result, get divorced, too.
It doesn’t come up that often, but it does come up. In fact, the reason I write today is because I received a question from a therapist friend of mine who said that she had a client who has an intellectual disability and who wants to get a divorce to leave an abusive husband.
That’s the problem with people with disabilities, particularly intellectual ones – the opportunity is there to take advantage of them. For that reason, the court often treads carefully in these types of cases.
We don’t want a disabled person to be taken advantage of because of their disability. But, of course, there’s also a wide range of disabilities, and there’s about a bajillion different ways to take advantage of a person. Sure, to face the court system when you’re intellectually disabled is a challenge all its own – but so too is having to stay married to an abusive person!
I imagine that, if you’ve found your way here, there’s someone out there that you’re hoping to protect. And that’s SUCH an admirable thing to do, so let me just say, ‘well done, you!’ I’m glad you’re asking questions to help your loved one who has found herself in a really terrible position, and I do have some guidance to offer you.
1. What happens next, in the divorce context, is going to depend on the extent of her disability.
As in cases where children are involved, cases that involve disabled adults often involve a Guardian ad litem. I’ll be honest – I haven’t written a whole bunch about Guardian ad litems who are involved in cases with adult clients. The articles I’m referencing here deal with Guardians ad litem in custody and visitation situations, not in divorce situations, but the same major premises apply. A Guardian ad litem is an attorney, appointed by the court, to represent the interests of a disabled party (or a child, which is considered a ‘disability’, essentially, under the law) to the court.
A GAL is appointed to help protect the disabled person. Of course, it’s sort of flawed, in the sense that employing a GAL at all is expensive. (Hey, they’re attorneys!) And, also, the Guardian ad litem doesn’t really work FOR the client in the same way that a privately retained attorney would. It’s the Guardian ad litem’s job to get to the bottom of the issues, and, ultimately, to make a recommendation to the court – which may or may not reflect the client’s own wishes.
A GAL will likely be involved if the disability is severe and profound, and if it impacts the ability of the client to understand the options available to her and the consequences of a course of action that she might choose.
2. She will likely want to hire her own private counsel as well.
Like I said before, a Guardian ad litem’s recommendation isn’t necessarily the same as what the client wants to happen. Depending on the level of disability involved, what the client wants might be complicated, not possible, or not readily understood by the Guardian ad litem.
A non-GAL attorney serves a different role. In a traditional attorney/client capacity, it is the attorney’s job to advocate for the client’s wishes. That’s a little extra complicated in a case where the client is disabled and may be more or less aware of the nuance associated with a set of decisions – but, still, a private attorney can be employed, and probably should be.
If you help your disabled loved one obtain counsel, you’ll want to keep in mind that the party herself is the client of the attorney – and not you, even if you found the attorney, even if you communicate to the attorney for the client, and even if you pay for the attorney. There is one client, and that person is probably not you in a situation like this.
3. The complexity of the case is relevant, too.
In a case where there are no children and nothing to divide, it’s easier than if it’s a case where there are more issues involved. If we’re talking about custody and visitation, child support, spousal support, or complicated equitable distribution, it may be even more complicated (and, of course, more expensive as well).
4. A consultation would be the likely first step.
Maybe your loved one qualifies for legal aid. Hey, it’s always worth a try. But it’s also possible that she won’t and, in that case, the next right thing is to schedule an appointment with an attorney, who can help explain the path that’s available to you now.
Give an attorney a call. Ask some questions. You’re in the right place, and you’re already doing the right thing – but, like so many other things, there are a lot of facts and circumstances that are really going to impact how this all goes down.
For more information or to schedule an appointment, give us a call at 757-425-5200.