Divorce for People with Disabilities: Complications and Considerations
Divorce is never easy, and this is even more true for people with a disability. It is a cruel irony, then, that studies see divorce rates increase after the onset of a disability.
If you are a person with special needs or the loved one of a person with special needs who is facing a divorce, this article offers insight into how to navigate some common concerns.
Protecting Government Benefits
Government benefits can be a matter of life or death for individuals with special needs, so it makes sense that they would be a primary concern in cases of divorce. Whether benefit payments can be garnished for alimony or child support, and whether eligibility may be impacted by a split, are complex topics with no uniform answer.
Supplemental Security Income (SSI), for instance, cannot be garnished, while Security Disability Insurance (SSDI) can. Whether a divorce will impact eligibility for SSDI and Social Security retirement benefits depends on the work record used (yours or your spouse’s), duration of the marriage, and age.
Division of benefits is another common concern that depends on state legislation. Some states, like New Jersey, follow an “equitable division” principle in which property division is determined by the court, while other states make allocations on a 50/50 basis. For this reason—and for those cited above—it is important to seek counsel from an experienced estate planning attorney who practices in your state when aiming to protect government benefits during a divorce.
Planning for Sustainable Well-Being
Ensuring benefits are retained is an essential part of protecting your well-being throughout a divorce, but it is not the only part. Numerous other considerations arise depending on personal circumstances.
In some divorce cases involving individuals with special needs, the question of capacity comes up. Not all states permit a person lacking capacity to file for divorce, while others allow a guardian or conservator to do so if they can demonstrate that it is in the person’s best interest. If this is an issue of concern in your case, it is doubly important that you seek expert counsel regarding how best to prepare.
Divorce involves more legal concerns than can be detailed in a single article, but of course, they pale in number when compared to concerns of a sentimental and practical nature. One especially challenging hurdle faced by people with a disability is how to access needed services and support that may have previously been provided by their spouse.
In some cases, family members can step in to fill the void, but in others, professional services are required. Where this is the case, Medicaid is often needed to cover the cost. Subsequentially, additional planning is required to ensure eligibility for Medicaid.
An attorney familiar with the unique challenges of divorce for people with disabilities will not only anticipate and help navigate legal hurdles but will also draw on a wealth of experience to share how others have been successfully guided through the divorce process and come out stronger as a result.