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.

Key considerations when divorcing a disabled spouse

If you’re divorcing a disabled spouse, it will add to an already emotionally charged situation. In addition to the legal and financial considerations of a typical divorce, you’ll have an added responsibility to your spouse’s needs. These can include:

  • Spousal support: What will the court see as your future financial obligations toward your spouse after the divorce?
  • Your spouse’s disability benefits: How will your divorce affect the disability benefits your spouse already gets?
  • Child custody and support: If you have children, how will you arrange for custody and support considering your spouse’s disability? 
  • Health insurance and medical expenses: How will your spouse’s health insurance coverage change after your divorce, and how could that affect their medical expenses? 
  • Property division: In an equitable distribution state, how will the court consider your spouse’s disability, needs, and earning capacity when dividing your marital assets and debt?
  • Living arrangements: Will your spouse require special living arrangements or ADA modifications?
  • Long-term care: If you’ve been your spouse’s primary caregiver, who will fill that caregiving role?
  • Special Needs Trust: Will you want to create a Special Needs Trust (SNT) to ensure your spouse maintains their current disability benefits?

Divorcing a disabled spouse requires a balanced approach that considers their future and also your own legal and financial welfare. Getting professional guidance will be an important resource for you as you consider these balances.

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. 

Needs assessment: A step-by-step guide

Assessing your spouse’s physical, financial, emotional, and social needs will be an important step when you’re determining what kind of care they'll require after the divorce.

  1.  Understand the disability. You’ll want to have a good understanding of your spouse’s disability and how it will impact them in the short and long term. Speak to their healthcare professionals to gain a clear understanding of how their disability will impact their life after divorce and their prognosis for the future. 
  2.  Evaluate their daily living needs. What are your spouse’s daily needs regarding their personal care, activities, and mobility? Will they require a living space with special modifications or equipment? How will they get around if you’re not there to take them? Are there communication barriers that will need to be addressed? What kind of therapy or counseling is available to them during this time?
  3.  Assess their financial needs. Review your current household expenses, specifically involving your spouse’s disability. What are their medical costs, care expenses, and costs of any adaptive equipment? Understand the current disability benefits your spouse is getting, how that might change after your divorce, or what your spouse may be entitled to receive. Consider the future financial impact of their disability, including any potential changes in their earning capacity or increased care expenses. 
  4.  Consider caregiving needs. What level of care will your spouse need after your divorce? Are there local options like in-home care, daycare, or other specialized care centers? Does your spouse have local family members who have agreed to provide caregiver services?
  5.  Assess their social and emotional needs. Consider your spouse’s emotional well-being right now and their need for social and emotional support when you’re not there to provide it. Explore local support networks or online support groups that could help your spouse feel more connected. 
  6.  Develop a comprehensive care plan. Based on your assessment, design a care plan that will address all of your spouse’s needs after the divorce. Get the help of professionals, such as healthcare providers, attorneys, and financial advisors, to help you consider things you may not have thought about. 

Understanding the full impact of your spouse’s care will help you get clarity during the divorce process and prepare you for what the court may consider your responsibilities. 

Suggested: What Is a Medicaid Divorce?

Will you owe long-term or permanent spousal support?

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 long-term or permanent spousal support is common. 

State-specific support laws

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 and varies by state. For example:

  • California considers the earning capacity of each spouse when awarding spousal support. A disability will impact a spouse’s ability to work, which will be a significant factor in the amount of the award and its duration. Furthermore, for marriages over 10 years, California courts may consider permanent spousal support, particularly if the disability is long-term or permanent. 
  • According to the Texas Family Code, Texas courts will order spousal support when a spouse is not able to earn enough income to provide for their “minimum reasonable needs because of incapacitating physical or mental disability.”
  • In New York, if a spouse has a severe disability that affects their ability to work, spousal support called “non-durational alimony" with no set end date may be awarded. New York courts may also grant rehabilitative spousal support to allow a disabled spouse to gain education or skills to become self-supporting. 

While spousal support laws vary, courts generally consider factors such as the disabled spouse’s ability to work, their earning capacity, their standard of living during the marriage, the length of the marriage, and any specific needs they will have after the divorce when awarding spousal support. 

Trusts, Medicare, Social Security, and SSDI

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. 

How it works

A special needs trust is a tool for providing additional financial support to disabled individuals without compromising their other benefits. 

The disabled individual or a third party, such as a family member, will establish and fund a special needs trust. These funds can come from cash, personal property, life insurance, investments, retirement benefits, or funds from a divorce settlement. The disabled individual will be named the trust’s beneficiary. 

A trustee is appointed. This is usually a friend, family member, attorney, or professional trustee. The trustee will be responsible for managing the trust’s assets, investing funds to ensure the long-term viability of the trust, and making distributions for the benefit of the beneficiary. The trustee must also make sure these distributions are carefully managed so they don’t affect the beneficiary’s eligibility for government programs. 

Because the trust now holds the assets instead of the disabled individual personally, they can benefit from them without being disqualified from the important public assistance programs they rely on. The trust will typically be terminated when it no longer contains any assets, when the beneficiary passes away, or under other conditions that are specified in the trust document. In some cases, leftover funds will be used to pay back the government program the individual benefited from. 

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.

Medicare eligibility guide

For certain people with disabilities, Medicare is available even if they are under 65. Anyone eligible for Social Security Disability benefits (see below) is also eligible for Medicare after a period of 24 months and will automatically be enrolled, regardless of their age. For those who have Amyotrophic Lateral Sclerosis (ALS) or End Stage Renal Disease (ESRD), Medicare benefits are available immediately as soon as their SSDI benefits begin. 

For disabled individuals, Medicare coverage is the same as the coverage available to older adults. This will include certain types of hospital care, nursing homes, doctors, home health care, and other community-based services, and it doesn’t have to be specific to an individual’s disability to be covered. 

You can learn more about Medicare disability-specific benefits here

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. 

Emotional complexity and coping strategies

Divorcing a disabled spouse comes with a myriad of emotional and legal complexities. Not only is it the end of your marriage, but you’ve had to take a more sensitive approach, considering your spouse’s financial, physical, and emotional well-being. How can you cope with these challenges, find emotional support, and take care of your own well-being during this time?

Acknowledge your mixed emotions

It’s normal to be feeling a range of emotions when you’re divorcing a disabled spouse. You may be feeling a mix of guilt, relief, sadness, and even regret. Be kind to yourself. Even though this has been difficult, you have made a decision based on what was right for you and your own well-being.

Maintain communication with your spouse

If possible, have honest and open conversations with your spouse. These will be difficult, but they can alleviate any misunderstandings and manage expectations. If necessary, you could seek the help of a mediator who specializes in divorces involving disabled spouses to help facilitate important conversations about financial support and caregiving. 

Get professional support

While friends and family may be there for you, you might need more focused or professional support to help you deal with all the conflicting emotions. Consider seeking out a therapist who is experienced in dealing with disability and divorce, or find a support group of people who share similar circumstances. 

Surround yourself with friends and family who understand

When you’re divorcing a disabled spouse, you may be experiencing some uncomfortable judgment from others. Lean on friends and family who understand what you have been going through and can support you emotionally. These people will be your safety net.

Take care of yourself

You may have devoted much of the later years of your married life to caring for the needs of your spouse with little regard for yourself. It’s time to take care of your own emotional and physical health. Set important boundaries, and don’t let others diminish what you’ve been going through and what you need for yourself right now. 

Plan for your future

You’ve spent your time focused on your spouse, ensuring the stability of their future. But you’ve probably given little thought to your own. Now is that time. It’s okay to want happiness for yourself. You deserve a bright and happy future of your own. 

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. 

Suggested: How to Apply for Medicaid after Divorce

Divorce Content Specialist
Mediation, Divorce Strategy, Divorce Process, Mental Health
Candice is a former paralegal and has spent the last 16 years in the digital landscape, writing website content, blog posts, and articles for the legal industry. Now, at Hello Divorce, she is helping demystify the complex legal and emotional world of divorce. Away from the keyboard, she’s a devoted wife, mom, and grandmother to two awesome granddaughters who are already forces to be reckoned with. Based in Florida, she’s an avid traveler, painter, ceramic artist, and self-avowed bookish nerd.