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Special needs divorce presents unique challenges that require thoughtful planning and strong advocacy, especially when one or both spouses live with a disability. Divorce affects every aspect of life, but for individuals with special needs, it can create added layers of legal, financial, and emotional complexity. From support arrangements to healthcare access and long-term care planning, having a knowledgeable advocate is essential. At the Law Office of Bryan Fagan, PLLC, our attorneys recognize the critical issues in a special needs divorce and actively protect your rights while guiding you through this life transition with clarity and confidence.
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 spouse with a disability 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. Under probate law, the court may appoint a guardian for an incapacitated adult—someone who cannot manage their own affairs due to a physical or mental disability.
In most cases, if an adult is incapacitated, their spouse serves as 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 spouse with a disability 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 becomes disabled during the divorce?
A question that may have entered 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 collaborate with a probate court to appoint an independent guardian who will act in your disabled spouse’s best interests. The probate court will hold a hearing to assess whether you or your spouse can proceed with the divorce or if a guardian needs appointment. If a guardian is appointed, the probate court will take over your divorce case to allow the judge to oversee both the guardianship and the divorce proceedings.
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. You may direct less of your income to your spouse after the divorce, which could require considering professional care-based services. Whether private insurance or Medicaid covers these services, you must plan for a seamless transition of care once you finalize your divorce. These supportive services will also help your disabled spouse maintain a strong relationship with your children after the divorce.
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 for 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 is that SSI is a needs-based program that takes into account your monthly income. If you or your spouse is disabled and already receiving SSI, your need for income will likely increase after 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 to 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. Many 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 reach at least fifty years of age and have remained married to the deceased for a minimum of 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
If you stayed married for at least ten years, you can claim Social Security retirement benefits based on your ex-spouse’s record. To qualify, you must be at least sixty-two years old, remain unmarried, and wait at least two years after the divorce before applying. Unlike SSDI income, these benefits follow stricter eligibility rules tied to your marital and divorce history. An interesting component of 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 doesn’t need to worry: collecting benefits under their name does not reduce the amount they receive.
Finally, if your ex-spouse passes away with benefits available to him or her, you may be eligible to collect those benefits if the amount of benefits is greater than what you would stand to collect under your own name. You must be at least sixty years old and have been married to the deceased for at least ten years to qualify. If you remarry, that marriage will have no effect on your eligibility to receive benefits.
Conclusion
Navigating a special needs divorce as a spouse with a disability involves more than just standard legal steps—it requires a focused approach that addresses medical, financial, and long-term care considerations. Strong legal support protects your rights and prioritizes your unique needs throughout the entire process. At the Law Office of Bryan Fagan, PLLC, we advocate for disabled individuals by tailoring legal strategies that account for government benefits, support arrangements, and accessibility needs. With the right guidance and understanding of what’s at stake, you can approach your divorce with clarity, dignity, and a plan for a more secure future.
Additional questions about getting divorced with a disability? Contact the Law Office of Bryan Fagan, PLLC
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, PLLC 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.
Other Related Articles:
- Is a Divorced Spouse Entitled to VA Benefits?
- Texas Alimony or Spousal Support and a Disabled Spouse
- Spousal Maintenance for a Disabled Spouse in Texas
- Supporting Disabled Spouses: A Guide to Spousal Maintenance in Texas
- Post-High School Life for an Adult Disabled Child in Texas
- How much child support can you receive in Texas for a disabled child over the age of 18?
- Can you collect spousal maintenance for an extended time period if you are disabled?
- Disabled and receiving Social Security benefits? Read this blog post before beginning your divorce
- Divorce with a disabled child in Texas
- Guardianships and Alternatives for Adult, Disabled Children in Texas
