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Unpublished Paper
Incompetence to Maintain a Divorce Action: When Breaking Up Is Odd to Do
ExpressO (2009)
  • Douglas Mossman, University of Cincinnati - Main Campus
  • Amanda N. Shoemaker, University of Cincinnati
The law has well-established provisions for handling divorce actions initiated on behalf of persons already adjudged incompetent or by competent individuals against incompetent spouses. But how should a court respond if a mentally ill petitioner who is competent to manage most personal affairs seeks to divorce a spouse for bizarre, very odd, or crazy-sounding reasons? Whether to allow a divorce action when the petitioner is motivated by psychotic ideas about a spouse is a matter addressed in just a few published cases, and then only indirectly. Largely unanswered are questions about whether domestic relations courts have the authority to stop such divorce actions, investigate competence of mentally ill petitioners, or order mental health examinations of petitioners. Yet several factors — better psychiatric treatment, social acceptance of divorce, population trends, and the advent of “no-fault” and unilateral divorce laws — have made it more likely that mentally ill petitioners will seek divorces for delusional reasons. This Article recommends that domestic relations law recognize incompetence to maintain a divorce action as a distinct form of legal incapacity. We review existing rulings that bear on whether a mentally ill person may be barred from pursuing a divorce because of a specific lack of competence to divorce. We explain how requiring parties to be competent to maintain a divorce action is consistent with existing case law and with existing doctrine concerning other legal competencies. We then offer a model statute that articulates a standard for incompetence to divorce and that would authorize courts to adjudicate the issue with the aid of expert testimony. We also give examples of evaluation questions that might help courts or mental health examiners discern whether a psychiatric disorder has compromised a petitioner’s competence to divorce.
  • divorce,
  • dissolution,
  • competence,
  • incompetence,
  • mental illness,
  • psychiatric disorder
Publication Date
February 28, 2009
Citation Information
Douglas Mossman and Amanda N. Shoemaker. "Incompetence to Maintain a Divorce Action: When Breaking Up Is Odd to Do" ExpressO (2009)
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