Studies show that divorce rates increase with the onset of a disability, a fact which can be heartbreaking for both partners. Planning for the future and financial matters is extremely important and more complex when a disability is involved. With so many intricacies that an able-bodied couple doesn’t experience under the same circumstances, where do you begin?
Let’s start by looking at the definitions of a disability. According to the Americans with Disabilities Act, ADA, “disability” is a legal term rather than a medical one. Because it has a legal definition, the ADA’s definition of disability is different from how disability is defined under some other laws, such as for Social Security Disability related benefits.
The ADA defines a person with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activity. This civil rights act prohibits discrimination based on disability in employment, transportation, governmental access, and public accommodations.
Social Security’s disability definition differs and is as follows: disability is the inability to engage in any substantial gainful activity (SGA) by reason of any medically determinable physical or mental impairment(s) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.
Thus, the term “disability” would apply to a wide range of impairments that people experience, from slight and nearly insignificant to totally debilitating. A judge will require a precise evaluation will want to know if the disability occurred before or during the marriage.
In divorce matters, divorcing a spouse who has not worked or who cannot work because of a disability usually means that there is strong argument for spousal support and that spousal support can be ordered for a longer time period. Another factor to consider is whether the non-disabled spouse has been a helper or care taker to the disabled partner. If the abled spouse has been a helper with daily routines, household chores, errands, doctor visits, etc., then replacing that assistance will have a financial impact that needs to be calculated into spousal support.
With regards to child custody, if the disability is severe, it could interfere with a parent’s ability to parent. A severe disability could mean that a parent lacks soundness of mind which would affect custody. A parent must have mental capacity to parent. If this in particular is a concern to you, it’s best to contact a lawyer as early into your proceedings as possible to make sure your children’s custody situation is as seamless as possible and allows them time with both of their parents.
Disability monies received by the parent with a disability factor into the equation as well. Social Security Disability Insurance or SSDI is available to a person who has paid social security payroll taxes over time. SSDI is payroll-taxed funded government program designed to provide income supplements to persons who are physically restricted in their ability to be employed. Supplemental Security Income, or SSI, is available to a person with a disability who has never worked or who has not worked enough to qualify for SSDI. The receipt of SSDI and the amount will not be affected by divorce, but SSDI monies may be garnished to pay child support. SSDI is considered income for calculating child support. SSI payments cannot be garnished and are not considered income.
SSI is also available to children with physical or mental disabilities. Children and their needs are also another important factor in the financial big picture of divorce in general, and children with a disability likely have special needs that should be considered in child support calculations.
One important thing to keep in mind for both partners is that social security benefits may not be divided as a martial property. Likewise, VA benefits may not be considered martial property when dividing assets.
Divorce can be complex, and disabilities can make an already difficult divorce that much more complicated at the expense of those involved, especially for the person with the disability. Be sure to get help with these matters from your attorney. For those who do not have an attorney, you can join our forum to ask questions and get answers from a licensed divorce lawyer.
