Factors to Consider When Divorcing a Disabled Spouse

Disability adds extra complications, and additional factors to divorce. Often, the traditionally abled spouse has served as caregiver, financial provider, and partner. Ending that kind of relationship can be emotionally difficult, and involve practical challenges not included in other divorces. Here are some factors to consider when divorcing a disabled spouse.

Top Factors to Consider When Divorcing a Disabled Spouse

Disability means different things in different contexts. Often, it will be up to you to educate the judge and other professionals involved in your case about your spouse’s diagnoses, abilities, limitations, and needs as a result of their condition. Depending on the nature of your spouse’s disability, it can impact many different aspects of the divorce process, and any possible settlement. Disability issues can impact:

• Child custody and visitation schedules
• Spousal support (also called alimony)
• Property division including disability and retirement benefits
• Insurance provisions
• Caregiving arrangements

Having a clear understanding of your spouse’s disability can make it easier to advocate for a resolution that is fair and equitable for both spouses, and keeps your children’s best interest at heart.

Legal and Emotional Capacity During Divorce

At its core, a divorce is a lawsuit. That means both parties must have the legal capacity to enter into agreements and be sued. If your spouse is not mentally able to fully participate in the divorce because of a severe mental health issue or mental impairment, the Connecticut divorce court may need to appoint a guardian or conservator to make those decisions on their behalf. If you have historically acted in this role for your spouse, you will need to step back and give someone else that authority to make sure their interests are represented and any settlement is fair to both spouses.

Disabled Parents and Child Custody Concerns

When one (or both) parents have disabilities, it can negatively impact their ability to act as parents and care for their children. Connecticut state law confirms that, while parents’ mental and physical health are relevant to child custody,

“[A] disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child.

While mental and physical health is only one of 17 best interest factors, many others can be negatively affected by some parental disabilities, including:

• The children’s physical and emotional safety;
• The capacity and disposition of the parents to understand and meet the needs of the child;
• The past and current interactions with the child and each parent;
• The ability of each parent to be actively involved in the life of the child;
• The stability of the child’s proposed residence with each parent;
• Abusive, manipulative, or coercive behavior by either parent.

If you ask the Connecticut courts to decide custody, it will be up to you and your divorce attorney to connect your spouse’s abilities and limitations to as many relevant factors as possible to make sure the custody order is going to ensure your children are protected and cared for.

Determining Child Support for Families with Disabilities

In any divorce involving children, the Connecticut Superior Court will always enter a child support order to make sure the children’s financial needs are met. This is done using the combined net weekly income of both parents. However, in a divorce with a disabled spouse, that income may not be in the form of wages or salary, but instead in disability benefits paid by the state or federal government. Because many of these government benefits are means-tested, your spouse may even qualify for more support after the divorce than during your marriage. Many of those programs also include dependents’ benefits for the support of their children, which should be considered in calculating support.

Alimony for Disabled Spouses

Connecticut spouses have a duty to support one another. Often, someone divorcing a disabled spouse will be expected to continue to provide financial spousal support after the judgment is entered. These periodic alimony payments are designed to help your spouse meet their needs after they can no longer rely on you for support. Reaching a fair amount and duration for alimony for your disabled spouse can be difficult. Once again, it is important to consider the availability of other kinds of benefits and sources of support available to your spouse, including Social Security Disability Insurance (SSDI) payments, Medicare benefits, and pension and retirement accounts. Remember that even if an able-bodied person would be restricted from withdrawing from 401(k) or similar accounts, a disabled person may not be penalized for withdrawing payments earlier.

Special Needs Trusts, Property Division, and Means-Tested Benefits

Remember that many of the benefits available to disabled people are limited based on the person’s income, ability to earn, and even their total assets. If you do not consider these limits in negotiating a property settlement, you could disqualify your spouse from the benefits they will depend on to maintain their independence. Even in higher-conflict situations, it is in your interest to keep those considerations in mind. If you divorce your disabled spouse and then he or she loses benefits because of the settlement, you could face a post-judgment motion for more or longer alimony to take their place. One way to make sure that doesn’t happen is to structure the Judgment and use estate planning techniques such as a special needs trust to shield the assets awarded to the disabled spouse, and protect his or her benefits.

How Collaborative Divorce Can Make Divorcing a Disabled Spouse Easier

There are so many factors to consider when divorcing a disabled spouse, that litigation may not be the best option. The practical aspects of a divorce involving disability mean that both spouses (and any court-appointed guardian or conservator) may need to work together to reach a resolution that protects everyone’s best interests. Collaborative divorce can offer the control and flexibility required to craft a settlement that you might never see in court.

At Lawrence & Jurkiewicz, LLC in Torrington, Connecticut, divorce attorney Ed Jurkiewicz is a member of the Connecticut Council for Non-Adversarial Divorce, the Family Law Section of the Connecticut Bar Association, and the Litchfield County Collaborative Divorce Group. If you are considering divorcing a disabled spouse, we can help you consider your options, including both litigation and collaborative options, to find what will work for you. We offer consultations by in-person appointment, phone conferences and zoom meetings. Please call us at (860) 264-1551 or contact us to schedule a confidential consultation to see how we can help you.