Tips for Divorce When One of You Is Disabled
- Key considerations
- Tips and needs assessments
- Alimony (spousal support)
- Child custody and support
- Continuity of medical care and treatment
- Trusts, Medicare, Social Security, and SSDI
- Emotional preparedness and tips
- Get more information
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:
Additional responsibilities
- Future financial obligations
- Changes to any disability benefits
- The best interests of children/dependents
- Health insurance coverage changes
- Medical care and expenses
- Accessibility concerns related to the home/assets
- Caregiving
Legal considerations
Divorcing a disabled spouse can involve unique legal and practical considerations to ensure compliance with laws and to ensure the disabled spouse is properly supported. These considerations may vary by jurisdiction but typically include the following:
Spousal support (alimony)
- Increased need: Courts often award alimony to disabled spouses who cannot support themselves due to their disability.
- Duration: Support may be awarded for a longer period or permanently, especially if the disability limits earning potential.
- Financial impact: The paying spouse's ability to provide support is weighed against the disabled spouse’s needs.
Division of assets
- Social Security Disability Insurance (SSDI) is typically not divisible as marital property.
- Supplemental Security Income (SSI) is means-tested and could be affected by alimony or property settlements.
- If the disabled spouse relies on SSI or Medicaid, property settlements may need to fund a special needs trust to avoid disqualification from benefits.
Custody and parenting
A spouse’s disability does not automatically disqualify them from custody or visitation. Courts assess the impact of the disability on parenting ability and may grant accommodations. Custody decisions prioritize the child’s well-being, considering the disabled parent’s ability to care for the child.
Health insurance and medical costs
If the disabled spouse relies on the other spouse’s employer-sponsored health insurance, options like COBRA coverage may need to be explored post-divorce. Agreements may address the responsibility for ongoing or extraordinary medical expenses.
Financial support and government benefits
Alimony payments or property settlements could affect eligibility for means-tested programs like SSI or Medicaid. SSDI may be factored into support determinations but is not divisible in divorce.
Legal protections and rights
- Americans with Disabilities Act (ADA): The ADA protects the rights of disabled individuals, including in divorce-related matters.
- State-specific laws: Some states provide additional protections or benefits for disabled spouses, especially if the disability is related to military service.
Divorcing a disabled spouse requires a balanced approach that considers their future and also your own legal and financial welfare. Professional guidance can 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.
- 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.
- 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?
- 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.
- 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?
- 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.
- 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.
How to navigate the transition of caregiving responsibilities
If one spouse has been a caregiver for the other, it’s important to follow steps to ensure that the disabled spouse is well taken care of during the separation and for the future. Here are some aspects to consider and create a plan around in your agreement.
- Assess current needs: Identify the disabled spouse's caregiving requirements, including medical, personal, and financial support.
- Involve professionals: Consult a social worker, health provider, care coordinator, or case manager to create a transition plan.
- Plan for continuity of care: Ensure there’s no disruption in care by arranging alternative caregivers or services in advance.
- Explore support services: Look into community programs, respite care, or assisted living options for additional caregiving support.
- Update legal documents: Revise powers of attorney, healthcare proxies, and estate plans to reflect new caregiving arrangements.
- Communicate clearly: Keep open and respectful communication to manage transitions effectively and prioritize the disabled spouse’s well-being.
- Set boundaries: Define your role post-divorce to provide clarity while allowing the disabled spouse to receive necessary care.
- Seek emotional support: This transition can be hard for both of you. Utilize counseling or support groups to cope with the emotional aspects of transitioning caregiving roles.
- Use mediation if disagreements or uncertainties arise: A mediator or lawyer who specializes in disability care can help you establish a caregiving plan that balances responsibilities and resources fairly.
By preparing thoughtfully and involving professionals, the transition can be managed smoothly while protecting the well-being of the disabled spouse.
Suggested: What Is a Medicaid Divorce?
Alimony (spousal support)
Calculating potential spousal support (alimony) for a disabled spouse involves evaluating their unique needs, limitations, and the paying spouse’s ability to provide support. Courts aim to achieve fairness while ensuring the disabled spouse's basic needs are met. Here’s a detailed breakdown:
Key factors considered in spousal support/alimony calculations
1. Financial needs of the disabled spouse
- Living expenses: Includes housing, utilities, food, medical care, and disability-related expenses (e.g., specialized equipment or care).
- Medical costs: Ongoing medical treatments, therapy, prescriptions, or in-home care requirements.
- Inability to work: Courts will consider whether the disability prevents or limits the ability to earn income.
2. Paying spouse’s ability to pay
- Income and assets: Includes salary, bonuses, investments, and other financial resources.
- Other obligations: Accounts for child support or other financial commitments.
3. Length of the marriage
Longer marriages are more likely to result in long-term or permanent alimony awards, especially if the disability arose during the marriage.
4. Age and health of both spouses
The physical condition and age of the disabled spouse can impact the support duration and amount. The paying spouse’s health and age are also considered.
5. Standard of living during the marriage
Courts aim to maintain a similar standard of living for the disabled spouse, as much as is realistic. Things like an accessible home and modifications needed to make it more so are considered.
Disability benefits and income sources
- Social Security Disability Insurance (SSDI): Courts may factor SSDI into income calculations but typically don’t offset it entirely.
- Supplemental Security Income (SSI): SSI is needs-based and can be reduced or lost due to alimony or other financial support.
- Special needs trusts: If the disabled spouse relies on means-tested benefits (SSI, Medicaid), spousal support may be directed into a special needs trust to preserve eligibility.
Rehabilitation potential
If the disabled spouse can improve their condition or retrain for work, courts may order temporary rehabilitative alimony rather than permanent support.
Types of alimony commonly awarded for disabled spouses
Permanent alimony tends to be granted in long-term marriages or when the disabled spouse is unlikely to achieve self-sufficiency due to their condition.
Durational alimony is awarded for a set period, often for medium-length marriages, to support the disabled spouse while they adapt to post-divorce life.
Rehabilitative alimony is provided to support retraining, education, or therapy that could improve the disabled spouse’s earning potential.
Bridge-the-gap alimony is short-term support for transitional expenses, such as moving or setting up independent housing.
Alimony calculation process
- Gather financial information: Documents that outline both spouses’ income, assets, debts, and expenses. Include detailed records of disability-related costs.
- Apply state guidelines: Some states have spousal support formulas based on income percentages (e.g., 30% of the payor’s income minus 20% of the recipient’s income).
- Adjust for disability: Courts adjust the amount to account for higher living and healthcare expenses of the disabled spouse.
- Factor in tax implications: Post-2019, spousal support payments are not tax-deductible for the payor or taxable for the recipient under federal law.
- Consider future needs: Courts may award higher or indefinite support for progressive or permanent disabilities.
Note: Either spouse can petition for changes if circumstances (e.g., health or income) change significantly post-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.
Child custody and support
When one parent is disabled, child custody and support arrangements need to account for the unique circumstances of the disabled parent while prioritizing the best interests of the child. Here are key considerations.
Child custody
Courts prioritize the child’s safety, well-being, and ability to thrive. Disability alone does not disqualify a parent from custody unless it directly impacts their ability to care for the child.
Types of custody
Physical custody: Decisions need to be made around whether the disabled parent can provide a safe and stable living environment.
Legal custody: This assesses the parent’s ability to make important decisions about the child’s education, health, and welfare.
Ability to fulfill parental duties
Courts assess whether the parent can provide daily care (e.g., feeding, supervision, transportation). They also consider that parent’s support systems, or availability of family members, caregivers, or community resources to assist them.
Cooperation and communication between parents are critical for joint custody or visitation arrangements.
Judges may consider reasonable accommodations to enable the disabled parent to fulfill their role (e.g., scheduling flexibility, assistive technology).
Child’s preference
Courts may consider the child’s preference (usually older children), provided it aligns with their best interests.
Child support
First, the court considers the disabled parent’s income, such as wages, disability benefits (SSDI), and any other sources. Supplemental Security Income (SSI) is typically excluded from child support calculations.
Courts consider the income of the other non-disabled parent as well. If the disabled parent is capable of earning income but chooses not to work, the court may "impute income" based on their potential earning capacity.
Disabled parents with fluctuating health or income may petition for a modification of child support obligations.
Courts may allocate responsibility for extraordinary expenses such as specialized transportation or equipment for the disabled parent if it impacts their ability to parent effectively.
If the child receives dependent benefits due to the disabled parent’s SSDI, those payments may offset the parent’s child support obligation.
Courts balance the child’s best interests with the rights and abilities of the disabled parent. Financial and caregiving plans should account for the unique needs of both the disabled parent and the child. Open communication and proactive planning foster healthier co-parenting arrangements.
How to ensure continuity of medical care and treatment
Ensuring continuity of medical care and treatment for a disabled spouse after divorce is vital to their well-being and requires careful planning and collaboration. Here’s a detailed guide:
1. Review health insurance coverage
If the disabled spouse was covered under the other spouse’s employer-sponsored health insurance, they might be eligible for COBRA coverage for up to 36 months post-divorce. Note the cost, as COBRA premiums can be high.
Explore eligibility for Medicaid, Medicare (if applicable), or state health insurance programs for low-income individuals.
If COBRA or government programs aren’t viable, the disabled spouse may need to purchase individual health insurance through the marketplace.
Ensure the paying spouse maintains a life insurance policy naming the disabled spouse as the beneficiary to secure future care funding.
2. Incorporate health care costs into the settlement agreement
Consider if the following apply to your situation:
- Spousal support (alimony): Negotiate an amount that considers ongoing medical and disability-related expenses. Specify that alimony should cover health insurance premiums and out-of-pocket medical costs.
- Division of assets: Allocate sufficient resources (e.g., savings or trust funds) to the disabled spouse to cover future medical needs.
- Specify how uninsured medical costs, such as deductibles and co-pays, will be divided between spouses.
- State whether one spouse is responsible for maintaining or contributing to the disabled spouse’s insurance.
3. Establish a medical care plan
List all ongoing treatments, medications, and healthcare providers. Ensure the medical care plan is documented and communicated to both parties. Anticipate potential changes in care requirements due to progressive conditions.
Make arrangements to retain the same doctors and specialists if possible. Provide the disabled spouse with copies of all medical records.
4. Explore disability and support programs
If the disabled spouse qualifies, SSDI provides income and access to Medicare after a two-year waiting period. SSI provides financial assistance and automatic Medicaid coverage for low-income disabled individuals. Research nonprofit organizations, government programs, or charities that provide assistance with medical care.
5. Use special needs trusts
A special needs trust protects assets designated for the disabled spouse while maintaining their eligibility for government benefits (e.g., SSI, Medicaid). Work with an attorney experienced in estate planning and disability law to set up the trust.
6. Post-divorce monitoring
It’s likely things will change over time. Revisit your situation at least once a year, or when there’s a major change in health, finances, etc. Reassess the disabled spouse’s medical care and financial needs. Petition the court for adjustments to alimony or support if circumstances change significantly.
Trusts, Medicare, Social Security, and SSDI
Divorce can have significant implications for disability benefits, including Social Security Disability Insurance (SSDI), Supplemental Security Income (SSI), and private disability insurance. Here's a breakdown of how each type of benefit may be affected:
Social Security Disability Insurance (SSDI)
Divorce does not affect eligibility for SSDI benefits, as these are based on the disabled individual’s work history and earnings record. The amount received by the disabled individual remains unchanged after divorce.
If the disabled individual’s ex-spouse or children receive dependent benefits based on their SSDI record, these benefits are typically not affected by the divorce.
An ex-spouse may qualify for spousal benefits based on the disabled individual’s SSDI record if:
- The marriage lasted at least 10 years.
- The ex-spouse is age 62 or older.
- The ex-spouse is unmarried.
Supplemental Security Income (SSI)
SSI is a needs-based program, so eligibility depends on income and assets. If the disabled individual divorces and their ex-spouse’s income or assets are no longer counted, they may qualify for SSI if they previously did not. Divorce can increase SSI benefits if the disabled individual’s household income decreases.
Alimony received by the disabled spouse may be considered income and could reduce their SSI benefits, depending on the amount.
Private disability insurance
Divorce generally does not affect eligibility for private disability benefits, as these are based on the terms of the policy and the individual’s disability status. Divorce has no direct impact on the benefit amount, but there may be indirect financial consequences. If alimony or spousal support is required, private disability payments could be included as part of the income used to calculate support obligations.
Ensure the disabled spouse retains ownership of the policy if it was purchased jointly or provided through the ex-spouse’s employer.
Veterans disability benefits
VA disability benefits remain unaffected by divorce. These benefits are based on the veteran’s service-connected disability status. VA disability benefits are typically not divisible as marital property in most states.
Workers’ compensation disability benefits
Divorce does not affect eligibility for workers' compensation benefits, as these are tied to the work-related injury. Divorce typically does not change the amount, but workers' compensation benefits may be considered when calculating spousal or child support.
Setting 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
