How Mental Illness And Disability Can Impact Family Law
Apr 10, 2023 | Written by: | Share
Mental illness and disability can play a significant role within a family law case and can affect how the case may/should be handled. These sensitive issues have to be carefully addressed with candor with your attorney. Your attorney cannot properly advocate for your position if you are not candid about the issues. Remember, your conversations with your attorney are privileged and confidential. It is critical not to withhold information about yourself that may impact your family law matter. If you do not disclose the issues and information to your attorney, he/she may not be able to effectively represent your interests nor protect you/your children.
Some of the questions that you should address with your attorney include:
- Does a mental health diagnosis impact and/or affect parenting time and custody?
- Does mental illness predict parental functioning and is it reliable? Under extreme circumstances, a mentally ill parent may lose his or her parental rights. Generally, parental right terminations are granted only as a last resort and when a child's best interests demand it.
- Does your spouse suffer from mental illness and how will that affect your ability to proceed with a divorce?
- Are there anxiety, depression, or substance abuse issues? Studies have associated divorce and separation with increased anxiety and depression, as well as increased risk of alcohol abuse.
- Do you want/need to obtain expert evaluations? This can be broad and encompass custody evaluations, psychological testing, psychiatric testing, and substance abuse (drugs, alcohol, etc.). Understanding the type of evaluation, whether same is court ordered, voluntary, partisan, etc., is critical to your case and must be discussed with your attorney before undertaking same. These tests can also be very costly.
- Does your case/illness warrant the appointment of a guardian or guardian ad litem? How will that affect your case? When an attorney accepts a case, he/she generally agrees to serve the goals of the client to the extent that the law permits, even when unwise or ill-considered. However, there is an exception in the Rules of Professional Conduct that allows a lawyer, when he/she believes the client has diminished ability, to seek the appointment of a guardian, guardian ad litem, or conservator. A court may also appoint a guardian on its own motion where the circumstances for same exist. The role of the guardian ad litem (GAL) is completely different from that of an attorney; the GAL is not a zealous advocate but rather evaluates for himself/herself what is in the best interest of the client, and represents the ward in accordance with that judgment. The GAL makes recommendations to the court accordingly, but does not have the authority to make legal decisions.
There may also be benefits available that affect family law cases and issues, such as alimony and child support. Those benefits may include some or all of the following:
- Social Security Disability Insurance – SSDI
- Supplemental Security Income – SSI
- Medicaid
- Division for Developmental Disabilities Services - DDD
Having a special needs child may also further complicate family law cases. Is there a need for a Special Needs Trust (SNT) or an ABLE account (Achieving a Better Life Experience Act of 2014)? This must be discussed in advance of settlement, as receiving support for a child may affect the child’s right to benefits and have significant consequences.
This is a very brief overview of very complex and substantial issues that will impact a divorce or family law matter if they exist. Each issue has to be carefully explored and examined with your attorney beforehand. Knowing if and when these issues even exist is critical, and having an attorney who understands these issues is even more critical. Each action has a consequence and possible reaction that needs to be understood, to the extent possible, before claims are made and experts are involved. Your divorce attorney may also need to involve another attorney who handles trusts and other complexities that could be enmeshed in cases with these types of issues.
Diana N. Fredericks, Esq., devotes her practice solely to family law matters. She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters from 2015 through 2022, to the NJ Super Lawyers list in 2023, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015. Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.