Divorce and Disability In North Carolina: What You Need to Know

August 30, 2022

Filling for a Divorce When You or Your Spouse are Disabled

elderly woman in a wheelchair

It is devastating to learn that studies have linked the onset of a disability to an increase in divorce rates. While future and financial planning are crucial for any marriage facing divorce, they become more complicated when a handicap is present. 


How will a divorce affect a person's disability benefits? What happens if they used to rely on a spouse for help? Where to even start answering these questions when there are so many complexities?


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.


What support networks and resources are recommended for individuals going through a divorce with a disabled spouse?

When navigating the complexities of a divorce involving a disabled spouse, it’s crucial to access the right support networks and resources. Engaging with community groups and organizations that focus on disability advocacy can be highly beneficial. These groups offer tailored advice and can help connect you with legal and social assistance specific to your needs. 


Furthermore, consider joining therapy sessions or support groups. These settings provide a safe space to discuss your challenges and emotions, offering both professional guidance and peer support. Therapists who specialize in divorce and disability issues can be particularly helpful, providing strategies to manage the situation more effectively.


Additionally, online forums and social media groups can also serve as vital support resources. They allow you to share experiences and receive support from others who understand the unique challenges you’re facing. This network can be an invaluable source of encouragement and practical advice during this difficult time.

How might disability benefits be affected by a divorce involving a disabled spouse?

Divorce can significantly impact disability benefits, raising numerous complexities that need careful handling. A disabled spouse who receives benefits like Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) might face alterations in their benefit status post-divorce. This change primarily depends on the nature of the benefits received and individual circumstances.


Understanding SSDI and SSI


SSDI: Typically based on the disabled person's work history and earnings.

SSI: Assesses income and provides benefits based on financial need.


How Divorce Affects Disability Benefits


1. SSDI: If a disabled spouse receives SSDI, divorce might not directly impact the benefits as SSDI is awarded based on the disabled individual's own work history.

2. SSI: Since SSI is determined by current income, a divorce could lead to changes in household income and potentially alter benefit amounts.


Legal Considerations


To navigate the intricacies of how divorce might modify disability benefits, it's crucial to seek legal advice. An experienced attorney can provide guidance tailored to specific situations, ensuring that rights are protected and financial stability is maintained. This legal support is essential in understanding pre-divorce agreements and their implications on disability benefits post-divorce.


Overall, the impact of divorce on disability benefits can be substantial, necessitating thorough preparation and expert legal assistance to manage effectively.


How can mediation help in a divorce involving a disabled spouse?

Understanding Mediation in Divorce Cases Involving a Disabled Spouse


Divorce can be a complex and emotional process, especially when one of the spouses has a disability. Mediation emerges as a supportive solution in such cases, offering multiple benefits that address the unique needs of the situation.


Facilitating Communication: One of the primary challenges in a divorce involving a disabled spouse is communication. Mediation provides a structured environment where both parties can express their needs and concerns in a respectful and understanding manner. A mediator, who acts as a neutral facilitator, ensures that the conversation remains productive and focused on solutions.


Tailoring Solutions: Every divorce has its own set of complexities, and the presence of a disability can add additional layers to the negotiation. Through mediation, solutions can be specifically tailored to accommodate the unique needs of the disabled spouse. Whether it’s arranging adequate financial support, or considering accessibility needs and caregiving arrangements, mediation allows for customized agreements that are mutually beneficial.


Reducing Conflict and Stress: The traditional divorce process can be adversarial and stressful, potentially exacerbating the challenges faced by a disabled individual. Mediation, by contrast, emphasizes cooperation and resolution. This approach not only reduces the emotional strain but also helps preserve a civil relationship between the parties. This is particularly vital when children are involved, or when the couple shares business or personal assets.


  Mediation is a valuable tool in divorces involving a disabled spouse by promoting a calm, personalized, and respectful negotiating environment. This not only aids in reaching agreeable outcomes but also supports the ongoing well-being of both parties.

What are some solutions and support options available when divorcing a disabled spouse?

Understanding Solutions and Support in Divorce with a Disabled Spouse


  Divorcing a disabled spouse involves unique considerations and challenges. It’s critical to approach the situation with care and informed support. Here are some key support options and solutions that can help both parties navigate the divorce process respectfully and effectively:


1. Mediation Services

Utilizing a mediator can be invaluable in divorce cases involving a disabled spouse. Mediators act as impartial facilitators who help both partners discuss their needs and work towards equitable solutions in a structured setting. This process often leads to outcomes that are agreeable to both parties without the emotional intensity of a court battle.


2. Specialized Legal Advice

It is essential to work with a divorce lawyer who has experience in cases involving disability. Such attorneys are well-versed in related legal rights and the nuances of asset division and alimony, ensuring that the settlement considers the long-term welfare of the disabled spouse. They can offer strategic advice tailored to protect both parties’ interests.


3. Understanding Disability Benefits

The impact of divorce on benefits such as Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) must be carefully evaluated. Professional legal guidance is crucial here, as the rules governing these benefits are complex. A lawyer can explain how your divorce may alter these benefits and suggest ways to mitigate negative consequences.

 

4. Emotional and Practical Support

Reaching out to support networks that specialize in disability can provide both practical advice and emotional comfort. These might include local disability advocacy groups, online forums, and specialized therapists or counselors. Such resources can be a lifeline, offering support from individuals who understand the specific challenges faced during such transitions.


By considering these structured support options, individuals can approach the dissolution of a marriage involving a disabled spouse with a balanced, informed, and compassionate strategy. Each measure can significantly contribute to a fair and smooth process for both parties involved.


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.

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Should I Post That? How Social Media Can Affect Your Family Law Case in North Carolina

July 21, 2025
In recent years, social media has increasingly become a part of our daily lives. Whether you are posting pictures of your kids, sharing a new recipe, posting about a new achievement, or venting about a bad day – it is common to sharing aspects of your life online that 50 years ago would not have been as readily available to the public. While social media has been valuable in fostering relationships and maintaining connections with others, no matter the distance, if you're involved in a family law matter, what you post online can have a serious impact on your case. Social Media Is Evidence – And It Can Be Used Against You What you post on platforms like Facebook, Instagram, X, or TikTok can become admissible evidence in court. Status updates, photos, messages, and check-ins can be: Screenshotted and saved by the other party Subpoenaed directly from the platform Used to challenge your credibility or claims As such, it is incredibly important to think before you post . Below are some common types of posts that may impact a family law case: Vacation or luxury spending posts Pictures involving alcohol or partying Rants or insults about your ex or the judge Posts involving new romantic partners Check-ins or locations Even memes, comments, or posts you “like” can be taken out of context and may be presented as evidence. In custody disputes, the court’s top priority is the best interests of the child. If your social media posts suggest instability, irresponsibility, or poor judgment, it can sway the court’s decision. Common examples of such posts include those that depict: Excessive drinking Drug use Inappropriate behavior around children Disparaging comments about the other parent At Russell Family Law & Litigation, we understand how digital evidence can help or hurt your case and how to develop a strong legal strategy from start to finish. If you’re going through a divorce or custody dispute, don’t go it alone – let us help you protect what matters most. Contact us today to schedule a consultation with one of our attorneys.

What is a Postnuptial Agreement?

July 1, 2025
What is a Postnuptial Agreement? In North Carolina, postnuptial agreements, or postmarital agreements, are valuable tools for married couples seeking to clarify financial expectations, protect individual assets, and reduce potential conflicts. Whether you’re newly married or navigating significant life changes, a postnuptial agreement can provide peace of mind and financial clarity. A postnuptial agreement is a legally binding contract entered into by spouses after marriage. It outlines how assets, debts, and other financial matters will be handled in the event of separation, divorce, or death. Unlike prenuptial agreements, which are signed before marriage, postnuptial agreements are executed during the marriage. There are two broad categories of postnuptial agreements: Those made during the marriage and not in contemplation of separation. Those made in contemplation of imminent separation or during separation. Depending on which category of postnuptial agreement the parties are entering, there are different things they are allowed to contract regarding. Most notably if the parties are not separated or contemplating imminent separation, they cannot include provisions regarding spousal support. For a postnuptial agreement to be valid in North Carolina, it must meet specific criteria: Written and Signed: The agreement must be in writing and signed by both spouses. Notarization: It must be executed before a certifying officer, such as a notary. Voluntary Consent: Both parties must enter into the agreement voluntarily, without coercion or undue influence. Fair and Reasonable Terms: The agreement must not be grossly unfair or unconscionable to either party. Not Against Public Policy: Postnuptial agreements cannot include provisions that violate public policy, such as agreements that encourage a party to leave the marriage. By addressing these issues proactively, couples can prevent misunderstandings and potential disputes in the future. An experienced family law attorney can help ensure that the agreement complies with North Carolina laws and accurately reflects the parties’ intentions. This step can also help prevent future challenges to the agreement’s validity. If you’re considering a postnuptial agreement, contact our office to schedule a consultation with an attorney to explore your options and ensure that your agreement meets all legal requirements.

What Is Discovery and How Can I Use It?

May 30, 2025
Oftentimes when parties separate, one party will have access to documents and accounts to which the other party is not privy. When this happens, attorneys will begin discussing “discovery.” Discovery is the process by which the parties can formally exchange information and documents that may be needed in their case. This process is important because it allows the parties to gather the information needed to make the best decisions for them in their case.

How are 529 Plans Handled in Divorce?

March 24, 2025
A 529 Plan, which owes its name to Section 529 of the Internal Revenue Code, is a tax-advantaged savings account that is designed to be used for the education expenses of the beneficiary. It is very common that parents create such an account to save for their child’s college education. So, what happens to such an account when the parents decide to divorce? 529 Plans , like other savings and investment accounts, are property. As such, in North Carolina, 529 Plans are dealt with during equitable distribution proceedings. During such a proceeding, the court will classify the parties’ property as one of three categories – marital, divisible, and separate – and then distribute the marital and divisible property among the parties. Thus, the treatment of the 529 Plan will depend upon how the plan is classified. N.C. Gen. Stat. 50-20 defines marital, separate, and divisible property as follows: Marital Property : “all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned, except property determined to be separate property or divisible property.” Separate Property : “all real and personal property acquired by a spouse before marriage or acquired by a spouse by devise, descent, or gift during the course of the marriage. However, property acquired by gift from the other spouse during the course of the marriage shall be considered separate property only if such an intention is stated in the conveyance. Property acquired in exchange for separate property shall remain separate property regardless of whether the title is in the name of the husband or wife or both and shall not be considered to be marital property unless a contrary intention is expressly stated in the conveyance. The increase in value of separate property and the income derived from separate property shall be considered separate property . All professional licenses and business licenses which would terminate on transfer shall be considered separate property.” Divisible Property : “all real and personal property as set forth below: All appreciation and diminution in value of marital property and divisible property of the parties occurring after the date of separation and prior to the date of distribution, except that appreciation or diminution in value which is the result of postseparation actions or activities of a spouse shall not be treated as divisible property. All property, property rights, or any portion thereof received after the date of separation but before the date of distribution that was acquired as a result of the efforts of either spouse during the marriage and before the date of separation, including, but not limited to, commissions, bonuses, and contractual rights. Passive income from marital property received after the date of separation, including, but not limited to, interest and dividends. Passive increases and passive decreases in marital debt and financing charges and interest related to marital debt.” Given these definitions, the classification and distribution of a 529 Plan will depend upon how and when it is created and funded. What is most important to note is that the court will not award the 529 Plan to the child, as the child is not a party to their parents’ divorce. Further, while the court may consider the purpose of the 529 Plan when making an “equitable” distribution of the parties’ property, the court will not totally disregard the value of the 529 Plan when distributing property among the parties simply because it is intended for the benefit of their child. However, the parties may take such considerations into account when negotiating a potential settlement between one another. If you are considering divorce or engaged in, or anticipate being engaged in, an equitable distribution proceeding, call our office today to schedule a consultation with an experienced family law attorney.

Do North Carolina Courts Consider Marital Misconduct?

February 26, 2025
North Carolina is considered to be a “no-fault” divorce state, meaning that a couple need not show cause or some wrongdoing in order to obtain a divorce. However, marital misconduct does play a role with regard to the issue of alimony in North Carolina. In determining the amount, duration, and manner of payment of alimony, the Court must consider a variety of factors as laid out in N.C. Gen. Stat. § 50-16.3A(b). This statute lists 16 factors which the court will consider when determining the issue of alimony . One of the most often discussed and litigated of these factors is marital misconduct. N.C. Gen. Stat. § 50-16.1A defines marital misconduct as follows: ‘Marital misconduct’ means any of the following acts that occur during the marriage and prior to or on the date of separation: Illicit sexual behavior. For the purpose of this section, illicit sexual behavior means acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.20(4), voluntarily engaged in by a spouse with someone other than the other spouse; Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought; Abandonment of the other spouse; Malicious turning out-of-doors of the other spouse; Cruel or barbarous treatment endangering the life of the other spouse; Indignities rendering the condition of the other spouse intolerable and life burdensome; Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets; Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome; Willful failure to provide necessary subsistence according to one's means and condition so as to render the condition of the other spouse intolerable and life burdensome.

Navigating Holiday Stress During Divorce: Tips for Families

December 5, 2024
The holiday season is a time traditionally associated with joy, togetherness, and celebration. However, for families going through a divorce, it can also be a time of heightened stress and emotional challenges. Managing these stressors effectively can help everyone involved – especially children – navigate this season with as much peace and stability as possible. Here are some common holiday stressors families experience during a divorce and practical strategies to address them: 1. Financial Pressures Divorce often brings financial changes that can make the holidays feel especially strained. Gift-giving, travel, and hosting events can add up quickly. Solution: Set a Budget: Be realistic about what you can afford this year. Focus on creating meaningful experiences rather than overextending financially. Free/low-cost experiences could include going to a holiday parade, going for a walk downtown or a drive around town to view the holiday lights, or taking the kids to the local mall or a store to visit Santa (or even the Grinch at some locations, such as the Cotton Exchange). Communicate with Co-Parent: Discuss gift budgets and avoid competitive or extravagant gift-giving, as this can create tension or unrealistic expectations for the children. 2. Emotional Strain on Children Holidays can amplify a child’s sense of loss or confusion about their family dynamics, especially if traditions are changing. Solution: Prioritize Consistency: Whenever possible, maintain familiar traditions to provide a sense of stability. Introduce new traditions as a way to create positive memories in this new chapter. Open Communication: Reassure your children that it’s okay to express their feelings and let them know both parents are committed to making the holidays special for them. 3. Loneliness or Isolation For people going through a divorce, the first holiday following separation can feel especially lonely and isolating. It’s normal to grieve the loss of how things used to be. Solution: Lean on Support Systems: Spend time with friends, family, or community groups that provide comfort and connection. Focus on Self-Care: Use this time to rest, reflect, and engage in activities that bring you joy and relaxation. 4. Co-Parenting Tensions The holidays can sometimes exacerbate underlying tensions between co-parents, particularly if communication is strained or agreements are unclear. Solution: Keep Communication Businesslike: Focus on logistics rather than rehashing old conflicts. Tools like co-parenting apps, such as Our Family Wizard or Talking Parents, can help keep interactions clear and professional. Put the Children First: Decisions should always prioritize what’s best for the children, even if it requires compromise. 5. Managing Extended Family Expectations Extended family members may have their own opinions or pressures about how holidays “should” look, which can complicate matters further and exacerbate holiday stress. Solution: Set Boundaries: Be clear with family members about your plans and priorities. Gently but firmly remind them that the focus is on creating a positive experience for your immediate family and avoiding negative talk about the other party or your current situation. Include Supportive Relatives: If possible, involve family members who can help diffuse stress and provide stability during this transitional time. If you are going through a divorce this holiday season and need legal representation, please contact our office to set a consultation with one of our family law attorneys.
Child Custody Picture with two parents and and child in the middle

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October 3, 2024
Navigating child custody arrangements can be one of the most challenging aspects of a separation or divorce. In North Carolina, the legal framework for child custody is designed to prioritize the best interests of the child, but understanding the different types of custody arrangements can be complex. This guide aims to shed light on the types of child custody in North Carolina, helping parents make informed decisions.

Grandparent Visitation in North Carolina

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By: Ashley Pollard

Co-parenting

July 19, 2024
Co-parenting is crucial to ensure that children continue to receive the love, support, and guidance they need from both parents despite the parents’ separation or divorce. By working together, parents can create a stable and nurturing environment that fosters the emotional and psychological well-being of their children. Effective co-parenting helps children adjust to change, reduces feelings of insecurity, and promotes healthy development. It also models positive conflict resolution and cooperation, providing a strong foundation for children’s future relationships. Ultimately, co-parenting prioritizes the best interests of the children, helping them thrive despite the family restructuring. Successful co-parenting after separation or divorce requires open communication, mutual respect, and a focus on the well-being of the parties’ children. To best ensure the success of a co-parenting relationship, it is crucial to keep discussions child-focused, and avoid negative talk about the other parent in front of the children. Flexibility and willingness to compromise are key, as well as seeking professional help if conflicts arise that cannot be resolved independently. Prioritizing the children’s emotional and physical needs will help ensure a positive co-parenting experience. Here is a list of ideas for potential resources that may help co-parents manage and support their children’s well-being while navigating the changing family structure:  Books for Children Age-appropriate books explaining separation and divorce Stories that help children understand and cope with their feelings Therapists and Counselors Child psychologists for children’s emotional and mental health Family therapists specializing in co-parenting dynamics Support Groups for Children Peer support groups for children of divorced parents In-person and online groups providing a safe space for children to share their experiences School counselors and social workers providing support and guidance Mobile Apps Apps designed to help children understand and manage their emotions Co-parenting apps with features to ensure both parents stay informed about their child’s activities and needs Books and Guides for Parents Manuals on how to support children through the transition Guides focusing on effective communication with children post-separation Guides focusing on effective communication with your child’s other parent Podcasts and Videos Podcasts offering advice on supporting children’s mental health during divorce YouTube channels with content aimed at helping children cope with family changes
Legal document with pen and stamp

Do I Really Need a Separation Agreement?

By Russell Family Law & Litigation • April 7, 2023
Even if both spouses have each other’s best interests at heart, the separation process is rarely smooth. To avoid conflicts, sign a separation agreement.
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