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What to Consider When Divorcing a Spouse with a Disability in Texas

June 2, 2023

woman sitting and talking to husband who is in a wheelchair

Divorce is not an easy path to take, and when you are divorcing a spouse with a disability, it can become increasingly difficult. Although you want to be fair and just, it is essential to protect your interests first so that you are protected and set up for success in the future. When a spouse requires additional accommodations, has a special set of needs, or receives unique benefits, another layer of intricacy arises during financial negotiations in a divorce. Here are common questions and considerations when divorcing a disabled spouse in Texas.

Can your disabled spouse participate in divorce proceedings?

If your spouse’s disability affects their mental competence, they may require a guardian, or conservator to represent them. The disabled spouse may also need additional assistance beyond their legal counsel, such as a financial consultant, to guide them through the process and protect their interests. Either party can request a guardian, or conservator to enter into the case in order to protect the interests of the other spouse. If your spouse requires additional help, prepare for your divorce proceedings to be delayed until one can be appointed. It is in the best interest of the case and is the best use of your time for each party to have a clear understanding of everything that is going on from the very beginning.

Are you a caregiver for your disabled spouse?

If you are your spouse’s caregiver, the expense of caring for your spouse will need to be accounted for in your divorce settlement. Your spouse’s ability to cook, bathe, get dressed, travel to appointments, and administer their own medications will need to be considered. If a caregiver needs to be hired to help complete those tasks, do they have enough money to do so? If they do not, this will likely fall onto you through spousal support to help cover the expense, although government assistance may pay for some of these services.

Will your spouse’s disability affect spousal support?

The short answer is yes. According to Section 8.051 of the Texas Family Code, a court may order spousal support when your spouse cannot earn sufficient income to provide for their “minimum reasonable needs because of an incapacitating physical or mental disability.” Determining how much their disability will affect spousal support is complex because the answer is dependent on a variety of factors related to your spouse’s disability.

How severe is your spouse’s disability? Is your spouse able to support themselves financially? Does their disability affect their ability to work and earn an income? Depending on severity of the disability, the Court may award a disabled person spousal support for a specific amount of time, or you may be required to pay spousal support for as long as your spouse is disabled and unmarried.

Does your spouse qualify for social security or other benefits?

It is important for you to have a firm understanding of the financial support your former spouse receives because it could impact how much you pay them in spousal support and child support. The more support your former spouse receives through benefits, the less you will likely have to contribute.

On the flip side, there are instances where you might still be entitled to some of your former spouse’s benefits in the face of divorce. For example, if you are over 62 and were married for at least ten years, and your former spouse is entitled to Social Security Disability Insurance benefits, you may qualify for a monthly benefit check as well. However, it is dependent on your individual situation, and it is important to discuss your options with a family law attorney. It will be a huge help to you if you maintain all receipts, invoices, reports, and any other documentation regarding the disability, so that you have a clear understanding of what the financial responsibilities may be.

Can your disabled spouse care for your children independently?

If you are the primary caretaker for your children within the home, considerations into your spouse’s ability to care for the children on their own will be taken. There may be a possible increase in child support payments for the disabled spouse if they need assistance with childcare. When determining the child custody schedule, if you are the primary custodial parent, the amount of support you provide could be lessened.

It is important to note that under Title II of the American With Disabilities Act, people with disabilities cannot be denied custody solely of their disabilities, and a physical disability does not serve as the sole determining factor in a child custody dispute.

Conclusion

Ultimately, there are no simple answers when it comes to divorcing a spouse with a disability. Your options are often dependent on your situation and the severity of support your spouse needs. For this reason, it is important to have the right information and legal support by your side. It may be wise to have a conversation with the disabled spouse so that you have an understanding of what things are agreed and which matters are left to be discussed. An experienced family law attorney can assess your situation, explain your options, and work with you toward a constructive resolution while delivering exceptional value. Contact a Goranson Bain Ausley attorney to learn about your next steps.

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