Divorce and Disability: What You Need to Know

Filling for a Divorce When You or Your Spouse are Disabled

What Is Considered a Disability?

Perhaps the best place to start is by defining disability. The term "disability" is specified under the Americans with Disabilities Act (ADA) as a legal term rather than a medical one. Because of that, the ADA describes disability differently from other statutes, such as for Social Security Disability benefits.

According to the ADA, a disabled person has a physical or mental impairment that significantly limits at least one major activity of daily living. This civil rights act makes discrimination based on a handicap illegal regarding work, transportation, public accommodations, and governmental access.

At the same time, Social Security offers a different definition of disability. According to this description, disability is an inability to participate in any kind of substantial gainful activity (SGA) as a result of a mental or physical impairment that can be medically determined. The impairment must have lasted or is predicted to stay for a minimum of twelve months or end in death. 

Therefore, a wide variety of impairments people experience can fall under the umbrella word "disability." During a divorce, a judge would demand a detailed evaluation of the handicap developed before or during the marriage.

Disability and Divorce

When a spouse divorces but has never worked or is unable to work due to a handicap, there is typically a strong case for spousal support, which a judge can grant for a prolonged time. This financial help is otherwise known as alimony and can depend on how many months a marriage lasted.

If the non-disabled spouse has assisted or provided care for the disabled partner, it will impact the financial outcome of the divorce. That is because a disabled partner now needs to find a replacement for the ex-spouse's assistance for everyday tasks. That includes domestic chores, errands, doctor appointments, etc., which will have a significant financial impact and, in turn, increase spousal support.

Parenting Rights

An individual has to be mentally capable to be a parent. For this reason, if the handicap is serious enough, it can affect a parent's capacity to care for a child. For instance, a severe handicap may indicate that a parent lacks the mental capacity needed for such a task. Naturally, that could impact child custody. 

In such a case, contacting an attorney as early as possible in the proceedings is advisable. That way, parents can ensure that the children's custody arrangement goes as smoothly as possible.

SSDI and SSI Benefits

A judge also takes into account whether a parent with a disability receives disability benefits, like SSDI or SSI. A person who has paid social security payroll taxes over the years is eligible for SSDI — Social Security Disability Insurance. SSDI is a federal program that receives funding from payroll taxes. It provides income supplements to those whose physical limitations prevent them from working. 

While divorce will not impact SSDI eligibility or payment, a judge may decide to withhold SSDI funds to cover child support obligations. That means a judge takes SSDI into account while determining child support. 

On the other hand, a disabled individual who has never worked or hasn't put in enough hours to qualify for SSDI may be eligible for SSI (Supplemental Security Income). SSI benefits do not count as income and, therefore, cannot be withheld. On the contrary — payments might increase after a divorce because SSI is a need-based help. 

It is important to note that social security benefits cannot be distributed as marital property. Similarly, VA payments don't count as marital property when dividing assets.

Children With Disability 

Any child with physical or mental impairments can also get SSI. Children and their needs play a significant role in the overall financial picture of divorce. That's why child support calculations should factor in specific requirements for children with disabilities.

Final Thoughts

Divorce is often tough. But dealing with a disability can make it even more difficult for everyone concerned, especially the disabled party. For this reason, it would be best to seek assistance with these issues from an experienced lawyer.