Disabled Divorce in Texas

Disabled Divorce in Texas

Divorce is a major disruption to anybody’s life who is involved in that process. For a disabled person this is even more true. While there are many considerations for a family to make prior to and during a divorce it is absolutely essential that disabled persons have a person in their corner to help make decisions when possible and to advise him or her as to their rights. The attorneys with the Law Office of Bryan Fagan would like to walk with you through an explanation on some of the more relevant considerations that disabled persons need to make during a divorce.

Does the spouse have the capacity to enter into a divorce?

Like with older persons whose cognitive skills have diminished with time, there are often questions surrounding whether a disabled spouse has the mental wherewithal to fully participate in the divorce proceeding. In Texas, the concept of a guardianship takes hold but this is not even a family law term, but rather one that is based in probate law. In probate law, a guardian can be named for an incapacitated adult- someone who due to a physical or mental disability cannot conduct their own affairs.

In most cases if the incapacitated adult is married their spouse is their guardian. If the guardian/spouse then files for divorce against their disabled ward then he or she must resign from their role as the guardian due to there now being a conflict of interest in place. This takes place in probate, rather than family court. The probate judge will then appoint a new guardian for the disabled spouse who can handle the legal and financial affairs of that person. Texas does allow a guardian to file an original petition for divorce if doing so is in the best interest of the disabled spouse.

What happens if you or your spouse become disabled during the divorce?

A question that may have entered into your mind is what happens if you or your spouse were to become incapacitated or disabled during the course of your divorce? In that situation your family court judge will work with a probate court to make sure that an independent guardian is named to work in the disabled spouse’s best interests. The probate court will hold a hearing to determine whether or not you or your spouse is competent to proceed with the divorce or if a guardian will need to be appointed. If the guardian is appointed your divorce case would be transferred to the probate court so that the judge may oversee both the guardianship as well as your divorce case.

An amicable divorce means more options for both spouses

If you and your spouse actually get along decently well it isn’t out of the realm of possibilities for you to support your disabled spouse during and after the divorce. It may be that not as much of your income is directed to the spouse after your divorce, in which case professional care based services may need to become a factor. Whether it is private insurance or Medicaid that assists with supplying these services some thought will need go into how a seamless transition of care can occur once your divorce is finalized. These supportive services will also assist your disabled spouse in maintaining a strong relationship with your children after the divorce is completed.

How will the divorce impact the receipt of government benefits?

If you are eligible to receive government benefits will your spouse have the ability to state a claim to those benefits as well? When it comes to Supplemental Security Income from Social Security a divorce can actually cause this amount of benefits to increase. The reason being is that SSI is a needs based program that takes into account your monthly income. It would follow then that if you or your spouse is disabled and already receiving SSI, your need for income would increase following a divorce. Another consideration to make here is that SSI is not relevant when considering spousal or child support payment levels.

Social Security Disability Income is another matter altogether. This income is susceptible for garnishment when it comes to spousal support or child support. Your ability to receive SSDI is contingent upon your having worked enough to accumulate “credits” from the government for future payment of benefits. May people worked during the early part of their marriage but have since been out of the workforce for some time. This would impact your ability to receive SSDI should you become disabled.

In the event that your ex spouse dies with credits to their name sufficient to have received SSDI, then you may be able to receive those benefits as a surviving ex spouse with disabilities. To qualify under this rule, you must be at least fifty years of age and been married to the deceased person for at least ten years. Unlike other provisions that allow an ex spouse to collect SSDI from a deceased person, it does not matter if you remarry here. You can remarry and still receive these benefits from your deceased ex spouse.

Social Security Retirement

You would be eligible to receive retirement benefits from social security for your ex spouse if you were married at least ten years. Unlike SSDI income, you cannot have remarried and must be at least sixty two years of age to qualify. In addition, you must have been divorced at least two years prior to applying for social security retirement income. An interesting component to this area of law is that your ex spouse does not need to give their permission for you to receive retirement income based on their work history. Your ex spouse need not worry too much: just because you are collecting benefits under their name does not mean the amount of benefits he or she receives will be decreased.

Finally, if your ex spouse passes away with benefits available to him or her, you may be eligible to collect on those benefits if the amount of benefits is greater than what you would stand to collect under your own name. Requirements are that you must be at least sixty years of age and been married to the deceased person for at least ten years. If you remarry that marriage will have no affect on your eligibility to receive benefits.

Additional questions about getting divorced with a disability? Contact the Law Office of Bryan Fagan

With so many considerations to make when it comes to getting a divorce it is understandable to have questions and concerns. Please contact the Law Office of Bryan Fagan if you would like to have those questions answered by one of our licensed family law attorneys. Consultations are free of charge and are available six days a week.

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Law Office of Bryan Fagan
Spring Divorce Attorney
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Houston, TX 77068
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