Tips for Divorce When One of You Is Disabled

Today, people are living longer than ever before, and disabilities and cognitive decline are becoming more common issues in divorce settlements. Studies show that divorce rates increase with the onset of a disability. When one spouse is disabled, the court will work diligently to make sure the disabled spouse is fairly provided for in a divorce matter. Consequently, divorcing a disabled spouse is not only emotionally complex but also financially complex.

Tips for divorce when one of you is disabled

If you’re considering a divorce from a disabled spouse, while it is possible, it will not be without complications. 

Depending on the extent of your spouse’s disability, they may completely rely on you for everything, including basic caregiving, income, and health insurance. If you seek a divorce from your disabled spouse, you should expect to pay spousal support and provide other financial assistance to them even after your divorce. It's important to understand how their disability may affect your divorce, what your financial responsibilities would be to them, and what other resources and providers may be available to help.

Assess the disabled person’s care needs

Care for a disabled individual can be extremely expensive, and the court will want to make sure your spouse is properly provided for after your divorce. 

A comprehensive assessment should be made of how much care your spouse requires, what their daily needs are, what they are able to do on their own, and what they will need assistance with. Even if your divorce is amicable and you fully expect to play a supportive role in their life after your divorce, you may still need to consider outside professional services. The cost of these services can be a key factor in your divorce agreement. 

Know that spousal support may be permanent

If your spouse cannot earn enough money to support themselves financially, there will be a strong case for you to continue to provide financial support. In divorce processes involving disabled spouses, a court order for spousal support is common. 

Depending on the state, there are various types and durations of spousal support. If the disability is expected to affect your spouse for life, you may be ordered to pay permanent spousal support. Spousal support for disabled spouses tends to be higher based on disability and expenses.

Set up a Special Needs Trust (SNT)

If your disabled spouse is receiving or applying for government benefits, know that there are asset and income limitations for receiving and maintaining these benefits. With the property division and spousal support involved in divorce, these limits may be exceeded, thus eliminating the disabled individual’s ability to get governmental benefits for their health care and other needs.

Thankfully, there is a potential solution. A special needs trust shields the disabled spouse’s share of divided marital property and spousal support from being considered by federal assistance programs. Their assets and support can be placed into an SNT, which will be managed by a trustee who uses the funds to pay the expenses and care of the disabled individual. An estate planning professional can help you understand how a special needs trust works and how it can be a critical tool in this situation. 

Read: What Is a Trust, and How Can It Protect You and Your Loved Ones?

Determine Medicare eligibility

Medicare is a health insurance program administered by the Social Security Administration to benefit individuals over 65 and those who collect Social Security Disability Insurance. Medicare can help offset the cost of medical equipment and medical care for your disabled spouse when they no longer have access to health insurance after divorce. If your spouse isn’t eligible for Medicare, however, you may be expected to provide health insurance benefits for your disabled spouse permanently or temporarily.

Learn about Social Security retirement benefits

Social Security retirement benefits entitle older individuals who have paid into the system to receive monthly retirement benefits based on their work and wage history. While the highest benefits go to those who wait until the full retirement age or beyond, your special needs spouse may be able to start collecting at the age of 62. 

If your disabled spouse has never worked outside the home and is not entitled to their own Social Security benefits, they are still entitled to half of your benefits as an ex-spouse if they are over 62 and you have been married for 10 years or more. 

Determine eligibility for Social Security Disability Insurance (SSDI)

Social Security Disability Insurance (SSDI) is a Social Security program that pays disability insurance benefits to those who are qualified. Disabled individuals must apply for benefits and meet the government’s criteria for a disability. These benefits will continue until that individual reaches full retirement age and then be transferred over to Social Security retirement benefits. 

If your spouse is already collecting SSDI benefits, these benefits can only be terminated if the disability has improved enough for them to work and earn enough money to be considered “substantial gainful activity.” 

From a property division standpoint, SSDI benefits may or may not be considered in a couple’s property division. Generally, SSDI benefits are considered separate property, but if monthly checks have been deposited into a joint account, benefits may need to be considered marital property during property division. 

Determine the disabled person’s SSI payments

Supplemental Security Income is available to individuals with limited income or resources who are 65 years of age or older, disabled, or blind. SSI recipients may also collect SSDI and be eligible for Medicaid. 

Because SSI is considered a needs-based program, benefits can increase or decrease depending on other resources available to the individual, such as marital property division and spousal support. 

Getting more information 

If you are considering a divorce from a spouse with disabilities, you should understand your responsibilities and the potential economic impact divorce could present. Divorce and family laws and government assistance programs can vary from state to state, so it’s critical to get legal guidance to understand your responsibilities and options.

At Hello Divorce, we specialize in helping divorcing spouses make it through this tough time. Our network of talented legal professionals can explain your rights and obligations as they pertain to your state’s laws and offer suggestions.