Mental Illness’ is not a bar for getting divorce in Texas

Every mentally ill person in the State of Texas has the rights, benefits, responsibilities and privileges guaranteed by the Constitutions and laws of United States and State of Texas. The capacity to divorce is a more complicated matter in several jurisdictions. Texas public policy does not prohibit authorizing a guardian to petition for divorce on behalf of her mentally incapacitated ward.

Appointing a guardian ad litem

In a case – Wahlenmaier v. Wahlenmaier, 762 S.W.2d 575 – decided by the Supreme Court of Texas in the year 1988, the wife filed a suit for divorce in the year 1984. At the time of filing the divorce petition, the wife was mentally competent. But when the first hearing took place in 1986, she was not able to testify concerning her desire for a divorce. A ‘guardian ad litem’ was appointed by the court to represent wife’s interest and proceeded to hear testimony as to the grounds for divorce. Her son and daughter from her first marriage testified that there was substantial disharmony in the marriage and there was no chance for reconciliation. On the contrary, the husband testified that he did not want a divorce.

In Wahlenmaier, the court held that the rights guaranteed under Tex. Mental Health Code to a mentally incapacitated person must also include a right to obtain a divorce. The court further held in this case that since the mentally ill person may not be able to act for himself/herself, a court-appointed guardian ad litem or next friend must be able to exercise the right for the mentally ill person.

Previously, Texas prohibited the granting of divorce when either spouse is insane. A next friend, where insanity of one of the spouses exists, who intervenes during the pending of the suit for divorce, could not prosecute the suit for divorce to a termination.

In Wahlenmaier, the evidence established that Mrs. Wahlenmaier was competent when she filed the suit, but she could no longer manage her affairs at the time of trial, although no legal proceedings had been filed to adjudge her incompetent and appoint a guardian.

Generally, the function of the guardian ad litem is to insure the protection of the rights and interests of the incompetent litigant. The powers of a guardian ad litem to act on behalf of the incompetent litigant are strictly circumscribed by the court’s own responsibility to ensure that the interests of the mentally incompetent person are not compromised. A guardian ad litem or next friend may exercise the right of a mentally ill person to obtain a divorce.

Who can be a guardian ad litem?

Guardian ad litem are usually lawyers or mental health professionals who support the court in the proceedings. A court may appoint a guardian ad litem if the court feels that the interest of the litigant is not sufficiently represented. It is the duty of the guardian ad litem to stand in the shoes of the litigant and to weigh the factors as the litigant would weigh them if the party is mentally competent.

By VAG Krishnan, Blogger at MJBLawOffices.com/blog