Monday, November 22, 2010
Douglas Mossman (Univeristy of Cincinnati College of Law) & Amanda Shoemaker have posted "Incompetence to Maintain a Divorce Action: When Breaking Up is Odd to Do"(84 St. John's L. Rev. 117) on SSRN. Here is the abstract:
The law has well-established provisions for handling divorce actions initiated on behalf of persons already adjudged incompetent or by competent petitioners 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?
Several recent social developments - better psychiatric treatment, wider 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. Yet the question of whether to allow a divorce action that is motivated by a petitioner’s psychotic ideas about his spouse is 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, to investigate competence of mentally ill petitioners, or to order mental health examinations of petitioners.
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 why 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.