What Happens If One Spouse Becomes Incapacitated Or Disabled During Divorce?
It's not something that happens all the time, but it does happen. During the course of a divorce, one spouse becomes incapacitated or disabled due to an accident or disease. This can significantly alter the trajectory of a separation depending on when the incapacitation occurs and whether it's permanent or temporary. Here's a general idea of what may happen if your soon-to-be ex-spouse becomes impaired during your divorce.
Evaluation by the Court
The court requires that both parties in a divorce clearly understand the legal and financial issues involved and be capable of making decisions in the case. Therefore, the judge will either request evidence proving the person has the presence of mind to continue with the case or order an evaluation of the individual to determine how incapacitated he or she is.
If there is evidence the person is too incapacitated to continue alone, then the judge will appoint a guardian for the individual who will represent his or her interests in the divorce. In some states, an application for guardianship must be submitted to the court before the judge can do this. In other places, a family member can step into the role as long as he or she is approved by the court.
Adjustments in Property Division, Child Custody and Support
There are several factors a family court judge takes into consideration when dividing up the marital assets and determining who gets custody of the children, and your spouse's incapacity or disability will factor into the judge's decision. The effect on the outcome of your divorce may be minor if your ex-spouse's condition is temporary-- for instance, if your ex suffered damage to his or her spine in an auto accident, but is expected to recover fully in a year. The judge may order your ex to pay child support, but postpone when the order goes into effect or reduce the amount he or she is required to pay until the person is able to return to full-time employment.
If the incapacity is expected to be permanent, however, then the judge will factor in your ex's long-term needs and ability to earn income. This means you could potentially lose valuable assets or get significantly less domestic support than you were expecting. For example, you may not be awarded spousal support if your ex's income potential drops to zero. However, you may be given full custody of the kids if your ex-spouse's incapacity or disability makes the person unable to adequately care for them.
Litigating a divorce where one spouse becomes incapacitated or disabled during the process can add a thick layer of complexity to an already complicated matter. Contact a divorce attorney, like those at Abom & Kutulakis LLP, to discuss how the sudden change will affect your situation and what you can do to protect yourself.
