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
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
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.