Although New York still recognizes fault-based divorces, it differs from states like Georgia, Mississippi, and Texas in that incurable mental illness is not one of the accepted grounds. When one spouse’s mental health condition causes them to behave erratically and aggressively toward their family, the other spouse typically cites extreme cruelty, which is grounds for an at-fault divorce.

As you can imagine, divorcing someone with a severe psychiatric condition presents unique challenges and considerations. Below is a general overview of divorce in New York when one spouse is bipolar, schizophrenic, or suffers from another form of incurable mental illness.

Mental illness and New York law

When the mentally ill spouse is deemed incapacitated, they may have a guardian act on their behalf in legal matters, but under Mental Hygiene Law Article 81, a guardian cannot initiate a divorce action on behalf of their incapacitated ward. Even if the person initiated the divorce while they were still mentally capable, the guardian could not maintain the action on their behalf afterward, although they can defend a divorce proceeding initiated by the other spouse and ensure that the outcome regarding property division, maintenance, and child visitation is in their ward’s best interests.

Spousal maintenance

When New York courts award spousal maintenance, they take certain factors into account, such the age, health, and earning capacity of both parties. When one of the spouses is mentally ill, a judge may conclude that their condition inhibits their ability to support themselves indefinitely, especially if the illness is incurable. This can mean that the other spouse will pay maintenance for a designated period or even permanently.

Property division

New York is an equitable distribution state, so when mental illness prevents a person from voluntarily agreeing to a property split, the court will make an equitable division of all marital property and debt. Its decision will be guided by statutory factors and an assessment of what each spouse’s future needs will be. Mental illness can determine the latter.

Child custody

The court must make custody and visitation decisions that are in the best interests of the children. If one parent has been diagnosed with a mental illness but succeeded in managing their condition and remaining stable, then a judge may award them regular custody and visitation. However, if they have a history of being aggressive, violent, and unstable, then the court may only order supervised visitation to protect the children’s best interests.

If you are divorcing a mentally ill husband or wife in New York, then their condition can make the process more complicated than usual. You should take steps to ensure that the divorce attorney you work with understands how the law applies to your situation and will seek an outcome that’s fair to your spouse while protecting your best interests. Jayson Lutzky is a Bronx, NY divorce and family law attorney. If you have legal questions or have received divorce papers from your spouses, then be sure to set up a free in-office initial consultation. Mr. Lutzky has helped thousands of highly-satisfied clients file for divorce over the past 35 years. Visit to learn more or call his office at 718-514-6619.

To learn more about this topic, download a guide from the official New York State Courts website at