Long-term disability and divorce can be disruptive since there are extra complications when one or both spouses have special needs. While marital laws differ by state, common issues of disability and divorce include cognitive capacity, additional support, special needs trusts, and the effect on government benefits.
In this article, we’ll discuss more of these issues. We will also highlight how disability affects the various payments.
What Issues Are Considered When Divorcing a Long-term Disabled Spouse?
The issues that are considered when divorcing a long-term disabled spouse include issues like cognitive capacity, the need for additional support, and the effect of the divorce on government benefits. Spouses are also concerned about what happens to their disability income after divorce.
In long-term disability and divorce cases, courts often consider these factors when deciding on the outcome of the case. Below, we look at these issues more closely.
Question of Cognitive Capacity
Cognitive capacity may be an issue in longer marriages and older couples. Often, whether spouses can participate in divorce proceedings and make informed decisions is questioned. However, state laws vary with regards to the ability to initiate proceedings.
Some states won’t allow an individual lacking the capacity to file for divorce, while some will let a conservator or guardian show that it is in the party’s best interests. Similarly, some states will allow a guardian or conservator to file for divorce on behalf of another with the court’s approval.
– Additional Support
If you’re divorcing a disabled spouse in California in an amicable process, you’re likely to be involved in their life to some degree, especially if minor children are involved. A disabled party may require a host of new services, given the ex-spouse’s previous degree of involvement. While family members may assist with some needs, there might be a need for professional services paid for through Medicaid waiver programs or private funds.
Courts make decisions on child custody based on the child’s best interests, but spouses with disabilities retain their parental rights, despite interactions with the children needing supportive services. Advance directives must also be updated if the ex-spouse was granted power of attorney over property and finances or named healthcare proxy.
– Special Needs Trusts
Divorce may significantly affect one’s economic status, which applies to a person with a disability too. For such parties, qualification for needs-based government benefits may be hugely significant.
If such parties don’t have a first party special needs trust (SNT), it is vital to create a court-ordered SNT to hold their share of divided marital assets and alimony payments.
– Disability Insurance
This type of insurance can be an essential consideration for spouses contemplating divorce, as it can provide financial protection if one spouse becomes disabled and unable to work. Both spouses should understand their current coverage and any potential gaps in coverage that may arise as a result of the divorce.
Sometimes, a divorce settlement may include provisions for maintaining or adjusting insurance coverage. It may be beneficial for both parties to consult with a financial advisor or divorce attorney to discuss their options.
A long-term policy can help in case a spouse becomes disabled and are unable to work and earn an income. If a divorced spouse is awarded alimony or spousal support, they can supplement their income through an insurance policy if they become incapacitated.
Typically, these policies provide benefits for an extended period of time, such as 2 to 5 years, or until the policyholder reaches retirement age. Therefore, they can help disabled spouses maintain their standard of living and cover expenses for quite some time. It’s important to note that when divorcing a disabled spouse in Texas, the policy may be considered an asset and divided as per the state’s divorce laws.
– Disability Benefits
Property division laws differ by state. Some use a 50:50 basis to allocate marital property, while others apply the principle of equitable division, where divorcing spouses get a fair distribution of their marital assets and property.
Generally, social security disability benefits aren’t considered for property division. However, depositing these funds into a joint account could lead to a 50:50 division during divorce in an equal property distribution state. An excellent way to prevent this is to establish an account exclusively to hold SSI and other similar benefits.
It’s also important to note that SSDI payments are considered an income and are factored in when calculating alimony, while SSI benefits aren’t.
If you’re divorcing a disabled spouse in Georgia receiving VA benefits, remember that these won’t be considered during property division. However, the veteran may have waived a part of their retirement pay to receive non-taxable benefits. In that case, their VA disability benefits may be garnished for alimony and child support payments.
Does Divorcing a Disabled Spouse Affect Government Benefits?
Yes, divorcing a disabled spouse affects government benefits depending on a case by case basis. Depending on your case, you might be eligible for the following government benefits: Supplemental Security Income, Social Security Disability Insurance, and Social Security Retirement Benefits.
If you plan on divorcing a disabled spouse in NC, you might have questions about the effect of the split-up on their government benefits. You might also be wondering whether you must receive some of the funds they receive through public programs.
Below, we look at some of these benefits and how they’re affected by divorce.
– Supplemental Security Income (SSI)
SSI refers to a needs-based program for people with a limited work history and resources, meaning that a party’s benefits may increase after finalizing their divorce. However, that depends on property division and alimony.
It isn’t uncommon for spouses to ask: can I get alimony if my husband is on disability benefits? However, SSI payments aren’t considered an “income” and cannot go into alimony or child support payment.
– Social Security Disability Insurance (SSDI)
SSDI benefits based on your work record won’t change after the divorce, but a part may be garnished if you’re ordered to pay alimony or child support. If your previous employment isn’t recent enough, you may miss out on these on your records.
Usually, workers living with a disability must have certain employment quarters based on age. However, 20 quarters must have been earned within the prior 10-year period if the person is above 30.
These benefits could also be based on a deceased ex-spouse’s work record. If the deceased ex-spouse was fully insured, the surviving partner living with a disability might be eligible for these benefits if the work record of the deceased party is higher than that of the surviving party.
The surviving party must have been married to their deceased ex-spouse for at least ten years and at least 50 years. Terminating an earlier marriage or remarriage after 50 won’t affect eligibility for these benefits.
– Social Security Retirement Benefits
Individuals can expect benefits based on their ex-spouse’s record, provided their Social Security record doesn’t entitle them to a larger benefit. Additionally, the couple must have been married for not less than ten years, and the individual claiming benefits is at least 62 and doesn’t remarry.
If the former spouse is yet to apply for Social Security, one may still be eligible for social security benefits based on the ex-spouse’s work record. However, this is subject to the parties being divorced for at least two years and both being at least 62.
If your ex-spouse dies fully insured, you may be eligible to receive retirement benefits on the decedent’s work record if it is higher than yours. However, you must be at least 60 and have been married to your ex-spouse for at least ten years.
Conclusion
Issues of long-term disability and divorce can significantly affect government benefits, so spouses contemplating divorce often have questions such as “what happens if you divorce a disabled spouse” or “can you receive disability and alimony at the same time.” Here are the main things to remember:
- Some financial issues that may be considered during divorce are additional support, disability insurance, special needs trust, and government benefits.
- Divorce can negatively affect SSI benefits and positively impact SSDI benefits if you get those through your spouse.
- Having an insurance policy can help if you become disabled and unable to work after getting a divorce.
- Benefits such as SSI payments aren’t considered income and are excluded when calculating alimony and child support payments.
There are several things to consider if you’re contemplating divorce with a spouse living with a disability. It is vital to work with an experienced family law attorney or disability lawyer to understand crucial matters of divorcing a disabled spouse, including proving disability for alimony consideration.
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