Incompetence To Maintain a Divorce Action: When Breaking up Is Odd To Do

(Excerpt) Given the increasing possibility that divorce petitions may be initiated by individuals like Mr. Doe, this Article suggests that domestic relations law should recognize a distinct, potential form of legal incompetence: incompetence to maintain a divorce action. In Part II, we review the social and legal trends just mentioned that may make incompetence to divorce a more likely phenomenon in the twenty-first century than would have been the case in previous times. Part III explains what types of psychiatric conditions might generate the mental problems experienced by Mr. Doe; conditions that might profoundly affect a sufferer's judgment about certain specific matters while leaving most mental functioning intact. Part IV reviews the currently limited existing case law related to this issue that could be a source for legal standards or criteria by which courts would determine whether a petitioner might be barred from suing for divorce on ground of specific incompetence to divorce.

In Part V, we suggest a rationale for requiring competence of divorcing parties that is consistent with existing divorce case law, existing laws, decisions governing other specific competencies, and with a widely used framework that mental health professionals use to evaluate and conceptualize competencies. Part VI describes a model statute on competence for divorce that legal decisionmakers might use to address the problems we identify, accompanied by examples of evaluation questions that might help courts or mental health examiners discern whether certain "crazy" motivations reflect judgment-distorting mental illnesses have indeed impaired an individual's competence to divorce.