While divorce is never easy, divorcing a spouse with a disability adds another level of emotional, financial, and legal complexity to the process. It will require a more finely balanced approach that considers your disabled spouse’s needs and future and also your own legal and financial welfare.
The court will take extra effort to ensure that your disabled spouse is fairly provided for, and this can mean the needs of your soon-to-be ex-spouse will factor into the process in ways beyond the typical divorce.
How Divorcing a Disabled Spouse Might Affect You
If you are divorcing a disabled spouse, there are many aspects you will need to consider that are atypical from the traditional divorce:
- Will your spouse’s disability factor into potential spousal support obligations after the divorce?
- How will the financial impact of the divorce affect any disability benefits your spouse currently gets? Would establishing a Special Needs Trust be helpful?
- How will the divorce impact the custody and support of your children given your spouse’s disability?
- How will your spouse’s health insurance coverage change after the divorce, and what are the alternative options?
- How will the court consider your spouse’s disability, needs, and earning capacity when dividing your marital property under equitable distribution rules?
- Will your spouse require specialized living arrangements or accessible housing?
- If you’ve been your spouse’s primary caregiver, who will fill that role after the divorce?
Schedule your free meeting with our team today to see if our Lawyers can help you.
Spousal Support Involving a Disabled Spouse
When determining spousal support, Virginia courts consider many different factors, including the needs and financial resources of both spouses. It will also look at the physical and mental condition of both parties. One spouse’s disability can have a significant effect on spousal support depending on the nature of the disability, both parties’ financial resources, and other variables.
When awarding spousal support, the court will consider:
- When the disability arose – Did the disability happen while the spouses were married?
- The nature and extent of the disability – The physical or mental extent of a spouse’s disability can play a significant role in spousal support determinations. A disabling condition requiring ongoing care often leads to higher alimony awards.
- The ability to earn – A disability can also affect a spouse’s ability to earn an income. The court might award a higher spousal support to compensate for this.
- The duration of the marriage – Longer marriages often result in higher spousal support awards. Courts aim to maintain the living standards of a couple coming from a long-term marriage, which can be challenging when one party is disabled.
- Existing financial resources – The financial resources available to both spouses will be considered. This will include any income sources from Social Security Disability Insurance, VA Disability Compensation, or other benefits.
- Support needs – A disabled spouse may have additional costs related to their disability, such as home or institutional care services, rehabilitation, accessibility adaptations, and other costs that may be factored into the court’s spousal support calculations.
- Your ability to pay – After all these variables are considered, do you have the ability to pay for spousal support?
When one spouse in the divorce process is disabled, spousal support will be a key consideration by the court. In some cases, when a dependent spouse cannot become self-supporting due to their disability, even with disability benefits, the court may award permanent spousal support.
Equitable Property Division
When one spouse has a disability, it can also impact how marital property is divided during a divorce.
In Virginia, equitable distribution does not mean an equal 50/50 split of marital property but a “fair” division considering many different factors. Under Virginia Code § 20-107-3, some of the factors that will be considered will include the financial needs and expenses of both parties, their earning capacity, their contribution to the well-being of the family, and their health and physical condition.
- Financial needs and expenses – A disabled spouse typically has higher medical and care-related expenses, often leading the court to award a larger share of marital assets to the disabled spouse.
- Earning capacity – A spouse’s ability to work may be diminished because of their disability. This can lead the court to allocate more assets to compensate for their reduced ability to generate an income.
- Contributions to the well-being of the family – Courts will consider the extent to which both spouses have contributed to the well-being of the household. If you have taken on a caretaker role over the years, the court may consider this contribution when making distribution decisions.
- Health and physical condition – Both parties’ ages and physical and mental conditions will be considered when the court makes property division decisions.
If the disabled spouse is receiving disability benefits from Social Security Disability Insurance or VA Disability Compensation, these benefits cannot be included as income when making property division decisions.
Click to contact our family lawyers today
Child Support, Custody, and Visitation
In Virginia, a parent’s disability is considered among various other factors in support and custody matters.
Custody and Visitation
The court’s primary concern in custody arrangements is the child’s well-being and safety. If a parent’s disability impacts their ability to provide a safe and stable environment and physically care for their child, it could potentially affect their custody rights. But it’s important to understand that a disability by itself will not prohibit a parent from gaining custody.
The court will evaluate whether and how the disability might affect their ability to meet the child’s physical and emotional needs when making its decision. If the parent has made adaptations in their living condition that allows them to manage their disability effectively, this can positively influence the court’s decisions.
Child Support
A parent’s disability can also impact their financial capacity, which will be considered by the court when determining child support obligations.
Virginia uses a standard formula for calculating child support based on both parents’ incomes. When a disabled parent receives benefits such as Social Security Disability Insurance or VA Disability Compensation, or if the child is eligible for derivative benefits through the disabled parent, such as SSDI dependent benefits, these can be considered in the support calculations.
Discrimination
It is important to note that under the Americans with Disabilities Act (ADA), individuals with disabilities are protected from discrimination, and this extends to parental rights in custody cases. The court is required to consider all reasonable accommodations that would allow a disabled parent to effectively care for their child while making custody decisions.
Schedule a call with one of our client services coordinators today
How Divorce Affects Disability Benefits
Divorce can be financially difficult, especially for disabled individuals. Fortunately, there are benefits available for disabled divorcing spouses.
Social Security Disability Insurance
Social Security Disability Insurance (SSDI) is a program administered by the Social Security Administration. Individuals must apply for these benefits and meet the government’s criteria for a disability. Benefits will continue until the individual reaches retirement age, when it will be transferred to Social Security retirement benefits.
Medicare
For certain individuals with disabilities, Medicare is available even if they are not yet 65. Anyone who is eligible for SSDI will also be eligible for Medicare after 24 months. For individuals with Amyotrophic Lateral Sclerosis (ALS) or End Stage Renal Disease (EDRD), Medicare benefits will be available immediately once their SSDI benefits begin.
Social Security Retirement Benefits
Individuals can begin to receive Social Security Retirement benefits at the age of 62, whether or not they are disabled. A disabled spouse who is not entitled to their own benefits can collect half their spouse’s benefits if they are at least 62 and have been married 10 years or more.
VA Disability Benefits
For those who served in the military, the Department of Veterans Affairs offers benefits for those who sustained disabilities connected to their military service. These include:
- VA Disability Compensation – monetary benefits for those who were disabled during active military service
- Special Monthly Compensation – benefits awarded to veterans and their families for specific needs or disabilities above the normal disability compensation
- Concurrent Retirement and Disability Pay – concurrent retirement and disability for those with a disability rating of 50% or more
- Combat-Related Special Compensation – monthly payments to eligible retired veterans with combat-related injuries severe enough to warrant retirement from the military
- VA Pension – benefits paid to wartime veterans with limited income who are 65 years old or older, or those under 65 who are permanently and totally disabled
- Vocational Rehabilitation and Employment (Chapter 31 benefits) – assists veterans with military-connected disabilities prepare for and find suitable employment and improve their ability to live independently
- Healthcare – a Medical Benefits Package providing comprehensive care for a veteran’s needs and disabilities
- Adaptive housing grants and vehicle allowances – grants to veterans who have suffered permanent disabilities resulting from their service for the purchase, construction, or modification of a home and vehicle allowances to accommodate their disability
Medicaid and Supplemental Security Income (SSI)
Supplemental Security Income provides financial assistance to individuals with limited income and resources who are elderly, blind, or disabled. Eligibility is dependent on income and assets. Furthermore, if the disabled spouse qualifies for SSI in Virginia, they also qualify for Medicaid, which is the state and federally funded program providing health coverage for those with limited income and resources.
After divorce, several factors could affect eligibility for SSI:
- Income and resources can decrease after divorce if the disabled spouse cannot work and no longer has the benefit of a spouse’s income.
- While alimony and child support payments received after divorce generally counts as income, the Social Security Administration does not count all of the child support received towards the income limit for SSI.
- Any changes in living arrangements, household composition, or housing costs can also impact SSI eligibility and benefits.
Special Needs Trusts
A special needs trust can be a beneficial tool for managing financial support for a disabled spouse and shielding their share of marital property, spousal support, and child support from being considered by federal programs.
A special needs trust can be established as part of a couple’s divorce agreement, and both parties or the court can agree to direct spousal support, property division assets, and child support into the trust. The trust will then be managed by a trustee who will use the assets in the trust to pay for the disabled spouse’s expenses and care.
Getting the Guidance of a Skilled Virginia Family Law Attorney
Navigating a divorce with a disabled spouse requires a legally skilled and balanced approach. At Melone Hatley, P.C., our experienced Virginia family law attorneys have unique special needs expertise regarding divorce and family law. If you have questions about the divorce process and the unique considerations of divorcing a disabled spouse, let us help. Call us at (877) 560-3568 or schedule a free consultation through our contact page.
Schedule a call with one of our client services coordinators today.
