Questioning the mental health of your spouse is a serious accusation to make during your divorce. Mental fitness can help determine the allocation of parental responsibilities because a person with a mental illness may be erratic, irresponsible or abusive. Your spouse is certain to react negatively to a claim that he or she is not fit to care for your children. However, you need to pursue the issue if you believe your spouse’s mental state is a danger to your children. Illinois law gives the court discretion over whether a party in a divorce needs to receive a mental health evaluation.
Requesting an Evaluation
A court may on its own order your spouse to undergo a psychological evaluation, but it is more likely that you will need to request it. Illinois Supreme Court Rule 215 explains the process, which includes:
- Filing a motion to order a mental health evaluation of a party in the case; and
- Recommending an independent examiner to conduct the evaluation.
The court will decide whether to approve the evaluation and the suggested examiner. An evaluation may be both an inconvenience and embarrassment to your spouse. You must show that there is enough doubt about your spouse’s mental health that an evaluation is necessary.
Once the court has approved the psychological evaluation, you have 21 days to return with the examiner’s findings. The evaluation may or may not include a diagnosis of a mental illness, depending on the qualifications of the examiner. The most important information is whether the examiner believes your spouse’s mental state is a danger to your children. The court will take the examiner’s recommendation under advisement and may use it as evidence that your spouse should have limited interaction with your children.
Illinois courts try to discourage opposing parties from harassing each other by making baseless accusations of mental illness. If the court grants your request for a mental evaluation, you will be responsible for paying for the examination and any income your spouse loses because of having to attend the examination. Needlessly accusing your spouse of mental illness may reflect poorly on you. During the division of marital property, the court has the discretion to favor your spouse if it believes your were harassing in claiming he or she has a mental illness. If the court believes you made the accusation to prolong the case, it may order you to pay a portion of your spouse’s attorney fees as compensation.
Your Children’s Safety
You must carefully consider whether your spouse’s behavior is a threat to your children before you request an action that may take away his or her parental rights. A Kane County divorce attorney at Van Larson Law, P.C., can help you decide whether requesting a mental evaluation of your spouse is necessary. Schedule a consultation by calling 630-879-9090.