Going through a divorce is generally difficult, as the emotional turmoil and the legal complexity can seem overwhelming. But these problems can be exponentially harder when you are divorcing a disabled spouse. Unlike a divorce between two non-disabled parties, a couple that includes one disabled party will need to consider how a divorce might impact Social Security Disability benefits, health insurance, and long-term caregiving, to name a few concerns.
Of course, the challenges that can arise during divorce depend largely on the extent of the disability. Many people who are legally disabled are fully capable of supporting and caring for themselves. Others cannot manage care tasks on their own and need a support network to ensure their health and welfare. Regardless of the level of disability, the ultimate goal is to find a financial settlement that works for both sides in the long term.
This article is not intended to advise about whether to divorce your disabled spouse. That is an individual choice that depends on many factors. A spouse’s disability can present challenges to a marriage, but all disabilities are not equal, nor does it mean the marriage is automatically doomed. Coping with a disability sometimes draws spouses closer together as they live out their vows to love each other "in sickness and in health." In other cases, a disability can compound existing rifts and change a couple’s emotional connection so drastically that the relationship is beyond repair. Then there are marriages where the disability has little, if anything, to do with the breakdown of the relationship, but the disability still must be accounted for during the divorce process.
As divorce attorneys, we don’t assess whether you should be getting divorced; we simply try to make the process as smooth as possible, while protecting your rights and securing results that serve you now and in the future. With that said, we turn to the challenges that should be addressed when divorcing a disabled spouse.
Assessing the Disabled Spouse’s Needs
In many cases, the ex-spouse may wish to continue to support the disabled spouse in some capacity; the question is simply what that support will look like. To start, the parties must determine what the disabled party can and cannot do in the area of self-maintenance. Then, depending on the disabled spouse’s level of dependence, assistance can take many forms:
- Financial support — A disabled spouse who has not worked might nonetheless be able to enter the workforce in time with training. The Americans with Disabilities Act bars certain employers from discriminating based on disability and requires them to provide reasonable accommodations. If the disabled spouse can work with accommodations, alimony might only be necessary in the short term. However, if the disabled spouse is unable to work, the non-disabled spouse can be required to pay permanent alimony.
- Personal care — The disabled spouse may need help with bathing, dressing, cooking, shopping, and other routine tasks. The supporting spouse could be responsible for these expenses.
- Medical care — If the spouse requires ongoing medical treatment, losing health insurance due to the divorce raises the question of how to pay for these services. The supporting spouse may wish to contribute in some way, even if they cannot keep their ex on their insurance policy.
- Companionship — Steps should be taken to ensure the spouse is not isolated from human contact after the divorce, as this can lead to physical and psychological deterioration. The supporting spouse may continue to visit their ex after divorce or otherwise help them find opportunities to socialize.
Once you know the type of assistance the disabled spouse requires, you can develop strategies for addressing those needs. While some individuals will be able to live independently with some in-home assistance, others may need an assisted living or a nursing facility.
Structuring Support for a Disabled Spouse
The strategies for supporting a disabled spouse after divorce are similar to estate planning strategies for a disabled adult. These include:
- Special needs trusts — Forming a special needs trust allows you to provide maintenance payments for a person with disabilities. The trust can be funded through alimony payments, the sale of marital property, or both. A special needs trust can ensure a sufficient monthly stipend without making the recipient ineligible for government benefits.
- Guardianship — You can request that the court appoint a trustworthy individual to oversee the spouse’s finances, pay bills, and monitor other matters related to health and welfare.
- Medicaid planning — If the spouse requires ongoing medical treatment, it may be possible to structure finances so that Medicaid will pay for services. Through the use of trusts, you can provide the spouse with maintenance while ensuring Medicaid eligibility.
- Disability benefits — You should investigate whether the spouse is eligible for Social Security Disability Insurance benefits. There is a requirement that the spouse must have worked within the last five years before filing.
Caring for a disabled adult after divorce often requires creative solutions, which an experienced family law attorney should be able to provide.
Child Custody and the Disabled Parent
A disability does not automatically disqualify a parent from exercising custody over a child. However, the court will inquire into the parent’s physical, mental, and emotional capacity. The nature of the disability is key to any determination.
A parent whose capacity is severely limited could not be expected to fulfill the duties of a custodial parent, especially with a needy infant, an active young child, or a rebellious teen or ‘tween. The court might allow a partially disabled parent to have custody of a cooperative older child, if the child was amenable. An older child’s availability to assist with younger children could also weigh in the parent’s favor.
Finally, a parent’s dedication to the children and the quality of the relationship they share could compensate for physical impairment. The court will look at the totality of the circumstances and decide whether the living situation would be in the child's best interests.
An empathetic ex-spouse can be of great service to the children and the disabled parent by encouraging their relationship. To the extent that contact with the disabled parent is in the child’s best interests, the custodial parent should facilitate frequent visits, so that a loving relationship can continue. This may require greater sacrifice on the part of the custodial parent than a conventional visitation plan with a non-disabled co-parent.
A disability can add unique complications to the divorce process, but these challenges should be met with patience and humility. It can help to remember that the disabled community is the only minority group any of us could join at any time. Even if we struggle to resolve key disputes, we must treat the other party with dignity and respect.