Divorce is never easy, but it’s even more complex when either spouse is disabled. Your chances of getting divorced increase with the onset of either spouse’s disability. If you or your spouse has special needs, there can be additional issues to consider as part of your divorce case, including financial support, child custody, and future disability payments. Understanding what’s at stake can help you better prepare for your divorce.
Spousal Support and a Disabled Spouse
A disabled spouse may be entitled to additional spousal support or alimony in a divorce. The rules governing alimony vary from state to state. Generally, a court will award alimony if one spouse has a substantial financial need and the other spouse has the ability to pay support.
In making a decision about alimony, a judge will consider factors like a disabled spouse’s need for frequent doctor visits, medications, and medical equipment. If a disabled spouse is unable to work or become self-sufficient, the other spouse may be required to help meet those financial needs through alimony payments.
How Will One Parent’s Disabilities Affect Custody?
Child custody is based on the child’s best interests. One parent’s disabilities won’t affect custody, unless that parent’s ability to meet a child’s needs is impaired. Some factors a court will consider when deciding custody include:
- the child’s relationship with each parent
- the child’s emotional, physical, and educational needs
- each parent’s emotional and physical health
- each parent’s ability to provide a stable environment for the child
- the child’s preference, if sufficiently mature, and
- the child’s connection to the community, siblings, and extended family.
The above list isn’t exhaustive, but shows a court’s overarching goal in a custody arrangement—a child’s needs and each parent’s ability to meet them. The severity and extent of a parent’s disability will make a difference when it comes to custody. For example, a self-sufficient, caring parent who happens to be wheelchair bound shouldn’t lose custody due to disability. A parent’s physical limitations are irrelevant to custody, unless those limitations affect the parent’s ability to meet a child’s needs. However, parents who are chronically hospitalized or unable to take care of themselves will face an uphill battle obtaining custody.
Disability and Child Support
A disabled parent won’t necessarily be off the hook for child support. Although one parent’s disability may affect their ability to earn income, a disabled parent’s worker’s compensation payments or Social Security Disability Insurance payments can count as income available to pay support.
The laws of your state will affect what counts as income when calculating child support. Consistent and regular disability payments are more likely to be construed as income and can affect a disabled parent’s child support order.
How Will a Divorce Affect Social Security Disability Insurance Payments?
In most cases, SSDI payments won’t change due to divorce. SSDI payments are based on a disabled spouse’s work record, the disability, and the disabled spouse’s age. Divorce does not change any of those factors.
If you have received your spouse’s SSDI benefit during your marriage, those payments will continue after your divorce, unless:
- you’re under 62 years old
- your marriage lasted less than 10 years
- you're entitled to a larger Social Security benefit based on your own work record, or
- you get remarried.
If your disabled ex-spouse dies, you may still be eligible for SSDI survivor benefits. Many of the same criteria as above are required: you’re over 62, married for 10 years or more, you’re not entitled to a larger Social Security benefit, and you haven’t remarried.
Questions for Your Attorney
- I am disabled and unable to work. I want primary physical custody of my kids, but will my inability to work affect my chances at custody?
- My spouse is severely disabled and wants a divorce. I want to stay married. Will I be responsible for spousal support even though I didn’t want to get divorced?
- Are my disability benefits separate property or marital property?