In some marriages, the couple married knowing that their partner was disabled. In other relationships, a spouse becomes disabled during the marriage. The disability may be due to an accident such as a car crash. Often, disabilities occur as spouses age. The wear and tear of life can cause physical and mental difficulties which can make it hard for a spouse to function. Some marriages dissolve because of the disability. One spouse’s disability can affect all parts of a divorce, including property division, alimony, child custody, and child support.
Disability and alimony
Whether a spouse with a disability will be awarded alimony depends on the type of support and the abilities and needs of the spouses.
- The aim of rehabilitative alimony is to help one spouse earn a living that is comparable to another spouse. If one spouse suffers a recent disability, then rehabilitative alimony may be the perfect solution to enabling him/her to acquire new job skills along with vocational and physical therapy – so the disabled spouse can earn a living.
- The aim of periodic alimony is to assist a spouse who is economically disadvantaged compared to the other spouse and where rehabilitative alimony is not a solution. The age, mental condition, and physical condition of a spouse are some of the many factors used in determining the amount of periodic alimony that should be awarded. Other factors include the length of the marriage, the standard of living of the spouses, and the separate assets of each spouse.
- Transitional alimony is generally awarded to level the playing field during the divorce. Lump sum alimony payments may also be awarded. A spouse’s disability could affect both of these types of alimony.
Additional considerations in determining spousal support for a disabled spouse include:
- The maintenance of health insurance for the disabled spouse
- Whether the disabled spouse needs a caregiver
- The transportation needs of the disabled spouse
Disability and property division
The disability of a spouse can be a factor in property division in several respects. There are often practical considerations. For example, a disabled spouse may not be able to drive or climb stairs. Practical differences can affect which spouse should keep a car and the living arrangements of the disabled spouse. Disabled spouses often need long-term care which may mean that property should be divided so that funds are available over the lifetime of the disabled spouse.
In Tennessee, 36-4-121. Distribution of marital property provides that payment for “pain and suffering awards, victim of crime compensation awards, future medical expenses, and future lost wages” are generally considered the separate property of the person who is awarded the payments.
One of the statutory factors in assessing how property should be divided is: “The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties.” Other disability-related factors can include the economic circumstances of the disabled spouse and the tax consequences of the property division – among other factors.
Disability and child custody and child support
Generally, a parent’s disability should not be used against them when deciding legal or physical custody. Still, every situation is different. Much depends on the scope and the extent of the disability. A parent does need to be mentally able to make decisions for a minor child. The parent should be mobile enough and have enough bodily function to feed the child, speak with the child, and take care of the child’s needs. The ability to meet with teachers, other parents, and the friends of the child will likely be a factor. A parent in a wheelchair should not be in jeopardy of losing custody rights. However, a parent with dementia can’t be expected to safely raise a child.
A disability generally doesn’t affect the love or stability of a parent, which needs to be considered in any custody decision.
The ability of a parent to earn an income is another factor in child support. Many parents with disabilities can earn a living. Some disabled parents can’t work. If they have no or little means of support for themselves, they can’t be expected to contribute much or anything to the support of a child. Courts may consider the Social Security income, workers’ compensation benefits, and disability benefits in considering a child support order.
At the Law Offices of Adrian H. Altshuler & Associates, our experienced divorce attorneys understand how traumatic divorce can be for healthy residents let alone those with a disability. We work to achieve agreements where possible but fight aggressively for a spouse when the other spouse isn’t being fair. For help with all aspects of divorce, no matter your health, call us at 615-977-9370 or complete our contact form to schedule an appointment. We represent spouses and children in Franklin, Columbia and Brentwood divorces.