Summer 2014 Newsletter: Practical Tips for Representing Clients With Mental Health Issues In Divorce

By Wendy O. Hickey, Esq., Melinda J. Markvan, Esq.

          Consider the client who walks into your office claiming that her husband is listening to her through the bug he placed in her watch.  How does she know?  Because the FBI and CIA told her so when they communicated with her through the Archie comic strip in that morning’s paper.  How would you react?  Would you immediately dismiss her statement as that of a crazy person?  Would you tell her you are not accepting any new cases at the moment and wrap up the meeting quickly?  Or would you recognize that even mentally ill clients have rights in divorces and, knowing you cannot talk people out of their delusions, try to establish an appropriate rapport? 

          If you decide you want to try to help, try asking the client to take off her watch.  Then place the watch out on your secretary’s desk and tell her now that it is out of the room, there is no chance her husband is listening and she can relax and speak freely.  This small acknowledgement of her version of reality will go a tremendous way in establishing a trusting relationship between the two of you.  Want to take it one step further?  You can even consider having a jeweler take a look at the watch to remove any bugs.  Ok, maybe that is going too far.

          Once you have established that you are, in fact, going to take on a client with mental health issues one of the most important things to do is set clear boundaries from the outset.  The client needs to understand your role is legal advocate, not additional therapist.  Make no mistake, you will need to be ready to listen with the patience of a therapist and help the client talk things out before she is able to reach a decision on how she wants to proceed on a legal issue but do not let the discussion cross the line.  The advice you give on how to proceed necessarily requires some practical discussions about the realities of what your client is capable of handling given their particular issues.

          One in four adults – approximately 61.5 million Americans – experiences mental illness in a given year.  One in about 17 – about – 13.6 million – live with a serious mental illness such as schizophrenia, major depression or bipolar disorder.[1]  Mood disorders such as depression are the third most common cause of hospitalization in the U.S. for both youth and adults ages 18 to 44.[2]   With these statistics in mind, if you choose to represent a client who clearly has mental health issues, you need to find out, at the outset whether your client has a diagnosis and/or if the client has an ongoing relationship with a therapist or other treatment provider.  If yes to both, you should ask your client to authorize you to speak with the treatment provider for purposes of (a) helping you understand your client’s strengths and weaknesses in relevant settings such as parenting, working, or just handling daily life challenges; and (b) having an open line of communication so that if either you or the therapist recognizes that the client is in a “crisis” during the pendency of the divorce, you can work together to make sure the client gets the necessary help both medically and legally.  For example, you should request that the treatment providers notify you promptly in the event your client is hospitalized.  This will permit you to get extensions or continuances of upcoming matters in a timely fashion so as not to irritate the judge with last minute requests.

          In addition to speaking to the client’s treatment providers, you might consider hiring a mental health consultant to give you an independent analysis and assist you on educating your client and the judge about your client’s condition.  If you go this route, a written engagement letter with the consultant should outline the scope of the mental health consultant’s role to protect his or her analysis as attorney-work product unless he or she testifies at trial.  The consultant could be hired to give an independent analysis of the quality of a GAL Report or a mental health evaluation. The consultant may be asked to highlight instances of the evaluator’s bias against litigants, competency to conduct an evaluation, ineffective use of collateral contacts, misinterpretation of test results and knowledge of latest research.  The consultant could also assist in preparation of cross examination of the evaluator to effectively expose objectionable conclusions and recommendations. 

          Whether your case involves alimony or custody issues, your client’s mental condition is a factor.  You must educate and support your client about the legal hurdles she is facing.  The key questions will be: does your client’s mental condition impact her ability to parent, has she properly dealt with the issues affecting her mental health, has she taken steps to protect the children, or does her condition impact her future financial needs? Many family law attorneys could play a therapist on TV, however we are not trained to know the answers to these questions despite what our clients might think. 

          It is easy to find yourself in a situation where your client is relying on you for therapy more than legal advice.  Make sure you regularly check in with yourself mentally to make sure the boundaries are clear and if you feel they have become cloudy, you need to re-establish them.  For example, when your client is asking you to spend an hour with him every other day, is not letting you get in a word edge wise and is directing the discussion away from ways to make progress in the case from a legal standpoint, you are a therapist not a divorce lawyer and you need to re-evaluate the relationship and figure out a way to re-establish boundaries.

          One of the most important things in representing a client with a mental health condition is the GAL investigation when children are involved.  You need to prepare your client carefully before she meets with the GAL.  Make sure she thoroughly understands the GAL’s role.  Make sure she is capable of stressing the positive aspects to her situation so that if she is capable of either being the primary custodial parent or having a joint parenting situation, that ability comes out in a GAL investigation.  For example, if your client has a long standing mental health issue and has been successfully treated with medication and/or therapy, there is no reason she ought not to have custody.  In a contentious divorce, she might find her spouse trying to use her condition against her despite her stability in a general effort to “win” the kids.  Your client should be comfortable talking openly about treatment and ongoing work with treatment providers to make sure she continues to be healthy for the children.

          Of course not all clients will be in treatment.  Not all of them will even recognize that they have a problem.  Those are the most difficult of cases.  If your client is truly impaired to a degree where you do not think she can assist in her own representation or manage her own affairs, you may need to consider seeking a GAL appointment for the client herself.  Of course that is only in the most extreme of cases and a step never to be taken lightly.

          Perhaps the hardest thing for us, as divorce counsel, to come to terms with is that we cannot fix the client’s problems.  We are not doctors, we are not therapists.  Many mental health conditions wax and wane given the client’s situation at that time.  Divorce is extremely stressful so clients with otherwise controlled conditions might have a relapse of depression or some other condition.  Be sensitive to your client’s needs but remember, you and your client are far better off if the client has a competent therapist, than if your client is using you as the therapist.  So, if the client walks through the door without one, do not hesitate to tell them you can only help them if they are helping themselves in an ongoing therapeutic relationship.

[1] Mental Illness Facts and Numbers, National Alliance of Mental Illness; National Institutes of Health, National Institute of Mental Health (n.d.). Statistics: Any Disorder Among Adults.

[2] Mental Illness Facts and Numbers, National Alliance of Mental Illness; Wier, LM (Thompson Reuters), et al. HCUP facts and figures: statistics on hospital-based care in the United States, 2009. Web., Rockville, MD. Agency for Healthcare Research and Quality, 2011.

Wendy O. Hickey is admitted to practice in Massachusetts, the U.S. District Court, the U.S. Court of Appeals, and the US Supreme Court.  She has been with Nissenbaum Law Offices since 1994 in supporting roles at first and for the last eleven years, as an attorney.

Wendy is active in the Boston Bar Association (Member of the Family Law Section Steering Committee and Co-Chair of the Family Law Section Newsletter Committee) and is also a member of the Massachusetts Bar Association, the Women’s Bar Association and the American Bar Association.  Wendy has lectured on various family law topics, mostly dealing with international kidnapping cases under the Hague Convention on Civil Aspects of International Child Abduction.

Wendy has written articles published in MA lawyers weekly and regularly writes on various family law topics for the Boston Bar Association Family Law Section Newsletter. 

Melinda Markvan (Mindy) is a family law attorney practicing in Massachusetts. She received a Bachelor’s Degree in Philosophy & Women’s Studies from Goucher College in Baltimore, Maryland, and a Juris Doctor from Massachusetts School of Law in North Andover, Massachusetts. Prior to starting her own practice, Mindy was an associate family law attorney with Lewis & Leeper, LLP in Framingham, Massachusetts and a paralegal & law clerk with Nissenbaum Law Offices in Boston, Massachusetts. Mindy’s career as a paralegal and an attorney has given her over 1o years of experience exclusively in family law.  Mindy has appeared in Probate and Family Courts throughout the Commonwealth on matters involving complex divorce and post-divorce matters. She is a member of the Boston Bar Association, Family Law Newsletter and Steering Committees and is committed to Pro Bono work.