Things to Know when Filing for Divorce with a Disabled Spouse 1

Divorce is a major blow for anyone and for a disabled spouse, going through a divorce might prove to be almost life-threatening. There will be a lot of considerations that you need to think about if you are contemplating on getting a divorce and either you or your spouse is disabled. The person who is disabled will need an able and expert attorney by his or her side to protect his or her rights.

There are some pertinent issues that you will have to consider when contemplating divorce with a disabled spouse. Check them out below:

1. Can a disabled spouse ask for a divorce and go through a divorce trial at court?

There are definitely a lot of people who wonder about whether a disabled person is allowed to participate in a divorce. In this case, probate law is involved.

There is a concept of guardianship that is always exercised when one is disabled and cannot handle their own affairs. If the disabled person is married, it is often their spouse who takes on the guardianship role.

When a divorce is in the picture, there will surely be a conflict of interest, no matter who filed for divorce. The spouse will have to give up his or her role as guardian and the probate judge will appoint another person to be the guardian of the disabled spouse before the divorce case can be managed.

2. Can you go through a divorce when one spouse becomes disabled during the divorce?

In cases where a disability or incapacitation happens to you or your spouse during the divorce, the probate court may appoint someone to be the guardian of the disabled spouse. This is especially true when you or your spouse is unable to proceed and deal with the divorce case because of disability.

In such cases, the divorce case itself will have to be taken to the probate court. You can either support your spouse during the divorce or you can get professional support and care as well as private insurance too if your divorce is an amicable one.

This will make the transition after the divorce is finalized easier. Once professional care is in place, it will also be easier to handle the relationship of your spouse with the children.

3. Will the divorce affect the receiving of government benefits in any way?

If you are originally set to receive government benefits, you might be wondering if your spouse will also be eligible to avail it. Supplemental Security Income or SSI is a program that considers your monthly income. In most cases, when you go through a divorce, the SSI is usually increased.

SSDI is a different matter altogether. As long as you have collected enough credits to qualify for SSDI, you will be able to receive it. If SSDI support is given to your spouse and your spouse dies, you will also be able to receive SSDI on his or her behalf – even after you remarry. In order to avail of this, you need to have been married for at least 10 years and be at least fifty years old.

4. Can you receive social security retirement benefits that belong to your ex-spouse?

Yes, you will still be able to receive social security benefits as long as you have been married for at least 10 years. The eligibility differs from that of SSDI though.

To avail of social security benefits, you mustn’t have remarried, you should be at least 62 years old and you should have been already divorced for at least two years before your social security income application.

You won’t need your ex-spouse’s permission and when you collect social security benefits in their name, it won’t impact your ex-spouse much. It won’t affect the amount he or she will receive.

5. How long can spousal maintenance for a disabled spouse last?

In Texas, the law does not necessarily encourage the payment of support post-divorce especially when there is no disability or other reasons to do so. Even with certain disabilities, usually, the non-disabled spouse will have to pay support only up to a certain point decided by the judge upon the finalization of your divorce.

If your disability persists even after the period of spousal maintenance is over, you can file a petition in court to modify the terms of spousal maintenance in your case.

The court will use the Texas family code to decide if spousal maintenance should be continued.

When it comes to petitioning for a modification in spousal support, you can refer to your final divorce decree to find out if the judge’s decision is more about firmly putting a limit on the period of spousal maintenance in your case or if the judge is willing to go all out in getting you the support that you need.

If it looks like the judge is intent on setting a limit to the duration of when you can receive spousal maintenance, it might be difficult to convince him to provide you with an extension of the initial term of spousal maintenance is over, despite your disability.

In most cases where the divorce is decided by the judge after a trial, you and your attorney will need to study the part of the divorce decree that covers spousal maintenance to protect your rights. You need to make sure that it emphasizes the uncertainty of your disability so that you will later have the chance to come back to court and ask for a modification.

Attorneys on your spouse’s side and your side may have different interpretations of the decree so they may have to present to each other their party’s own version of the decree.

The two attorneys will agree which parts of their interpretations should be included in the final version of the decree. If it turns out that the decree can’t be sorted out this way, it is highly likely that both lawyers will have to take it to court and discuss it with the judge.

You will need an attorney who is careful and is genuinely concerned about your rights and your future to help you out in this. A divorce is rarely ever easy and it can be more challenging when there is disability or incapacitation among those involved.

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at attorney@okohlaw.us

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