How will disability affect my divorce?

divorce can be complicated and exhausting for everyone involved, but for those dealing with one or both of the spouses having a disability, it may heighten the complexity of alimony or child support issues.

How can a disability affect an alimony award?

Alimony payments are court-ordered payments made from one spouse to another after a divorce to help the spouse being paid the alimony support him or herself after the divorce where the paying spouse can pay the amount ordered. The general idea behind an alimony award is to enable the spouse who earns less money to maintain a lifestyle comparable to the standard shared during the marriage.

Someone married to a partner with significant disabilities may play a large part in helping them with day-to-day tasks or supporting them financially. After a divorce, care arrangements often change, and extra services or financial support may be necessary to keep a comparable quality of life that was had during the marriage.

Whether one spouse has a disability will generally factor into how that spouse’s disability affects his or her health, whether it effects his or her ability to be self-sufficient, whether they can obtain any form of employment, or whether there are additional expenses related to that spouse dealing with that disability. Having a disability can also be one of the reasons a Court might extend an alimony award past the date of the paying spouse’s retirement age of 67, at which time it generally would end no matter how long it was awarded for.

So a disability can definitely affect how much support is awarded and for how long the alimony gets paid.

How can having a disability affect custody?

Custody decisions are always made in the best interests of the child in question. Typically, when a couple is divorcing, joint custody is granted so both parents can play a role in the child’s development. (This is different than when a couple is not married. In that case, the mother has sole legal and physical custody until the Court orders otherwise.) The Court will consider what the disability is in relation to how that may affect a custody order, whether legal or physical. If the disability is severe and could interfere with a parent’s soundness of mind, that could limit that parent’s ability to obtain joint legal custody.

The Court will likely look at what role the spouse with the disability took on during the marriage to see what role he or she is able to continue with after the divorce when it comes to a parenting schedule. We have been able to work out parenting plans that work around a parent’s long-standing disability. For example, if someone suffers from extreme depression and anxiety, you might work something into the parenting plan that allows that parent to decline exercising parenting time while suffering through an episode but can make up any time missed once the episode has passed. However, sometimes extreme disabilities can make it impossible for a parent to be able to be a reliable caretaker for the children. The goal is that, no matter what the circumstances, the parenting plan is set up in a manner that allows for real-life extenuating circumstances while providing the children with the opportunity to have a meaningful relationship with both of their parents, regardless of a disability.

Social security disability payments

Social security disability payments are still going to be considered as income to the person receiving the benefits. When considering alimony, the Court would take into consideration whether the disability income is short-term or long-term and whether it prevents the person from receiving the disability payment from being able to work to any capacity.

In relation to a child support order, the income received through disability is going to be counted within that person’s financial statement as well as within the child support calculation. If the children receive a dependency benefit derived from the parent receiving the benefit, then the dependency benefit amount will need to be added to the gross income of the disabled parent in relation to calculating child support, even if it is the custodial parent who is receiving the money on behalf of the children.

If the parent who will have to pay child support is the disabled spouse and the presumed child support amount is equal to or less than the dependency benefit, then that parent will have no obligation to pay child support in excess of the dependency benefit. (Although that parent does not get a credit back if the dependency exemption is higher than the presumed child support amount.)

If the child support guidelines result in a higher child support payment than what the custodial parent will receive for the dependency benefit for the children, the disabled parent (assuming he or she is the non-custodial parent), will have to pay the difference between what the child support presumption is and what the dependency exemption is.

For example, let’s say Dad gets custody of the kids and Mom is disabled but the children receive $350 per month as a dependency benefit. If the presumed child support order comes to $300 per month, then the disabled parent would not pay any child support. If the presumed child support order comes to $400, however, the disabled parent would pay $100 per month out-of-pocket toward child support.

If the custodial parent is the spouse receiving disability payments and the children are obtaining a dependency benefit because of it, the dependency benefit would be calculated into the custodial parent’s income and the child support guidelines would be run as they would in any other case not involving a disability. There would not be any credit to the non-custodial parent because of the dependency benefit the children receive.

What if i become disabled after my divorce?

A disability occurred after divorce can often affect a previously ordered support payment, whether that be alimony or child support. A child support order will always be modifiable so long as the children are not emancipated. If you are disabled and unable to work, then there is likely a decrease in your income which will generally change the presumed child support order.

However, whether alimony can be modified depends upon the language used within the divorce in regard to whether your alimony clause survived or merged with the judgment of divorce. If your alimony clause survived (whether that was with a waiver of alimony or with some sort of payment being ordered), then a subsequent disability will not allow you to seek or modify alimony.

If your alimony clause merged with the judgment of divorce, then you can potentially modify alimony because of a subsequent disability. If you were the paying spouse, you may be able to seek a decrease in the amount you’re paying or terminate payments altogether. If you were the spouse receiving alimony and you become disabled, you may be able to seek a higher alimony payment or obtain an alimony award for a longer period of time than is generally allowed.

If you need a modification of a support order because of a disability incurred subsequent to a divorce, whether that be to obtain a higher payment than you were ordered or to try to lower or stop payments you were making previously, you want to file a complaint for modification and a motion for temporary orders as quickly as possible.

If you are seeking a divorce and have more questions about the role of disability in a divorce or modification, contact the experienced attorneys of O’Connor Family Law to discuss your case. Our family lawyers are compassionate and driven to help each of their clients through their unique divorce case, and we understand complex financial issues and can help you understand the ins and outs so you know what to expect. Call, email, or submit a contact form to schedule a case evaluation today.

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