New Jersey Family Law Firm
The Ramifications of Divorcing an Incapacitated or Disabled Person
Studies show that physical and mental disabilities can take a toll on a marriage—disabled persons have a higher divorce rate than couples without disabilities. There are some unique issues that arise when one of the parties to a divorce is incapacitated or suffers from a disability.
Can the Disabled Spouse Provide for His/Her Own Needs?
Though it’s not the only factor considered by courts when awarding spousal support, disability will likely be considered. A judge will, however, evaluate the potential earning capacity of both parties, as well as the standard of living of the parties while married. In New Jersey, a grant of alimony also depends on the actual needs of the recipient, as well as the ability of the other spouse to pay. If the disabled spouse receives sufficient assets in the property settlement to meet his or her needs, spousal support may not be awarded, but the court can consider any factor deemed appropriate. The court can also consider the disabled person’s access to social welfare programs and governmental benefits, but this may not be dispositive.
In addition to alimony or spousal support, a court may also require a non-disabled spouse to provide other benefits to a disabled spouse, including health insurance.
Child custody and child support also can be impacted by disabilities as well. It is important to discuss all issues with your attorney so that your family is protected.
Does the Disabled Spouse Understand the Process?
If the disability affects a party’s ability to understand and reason, the court may have to appoint a guardian to make his or her legal decisions.