Considering ending your marriage is always stressful, but when your spouse is disabled, the prospect becomes even more difficult.
You may support your spouse financially and serve as a caregiver. These concerns add an extra layer of context to financial negotiations in a divorce.
Here, we’ll discuss divorcing a disabled spouse in Texas, pointing out things you’ll want to consider before filing legal paperwork.
Is Your Spouse Mentally Competent?
Your spouse’s mental competence determines whether they can participate in divorce proceedings. In the case Wahlenmaier v. Wahlenmaier, the Texas Supreme Court said that a mentally ill person has the right to divorce but may require a guardian ad litem appointed to represent them.
In that situation, your attorney would negotiate divorce issues with the guardian ad litem and your spouse’s attorney. Prior to this case, mentally incompetent people could not divorce in Texas.
Texas allows both fault-based and no-fault divorces. Confinement in a mental hospital is listed as one of the grounds for a fault-based divorce. To use these grounds to divorce a disabled spouse, your spouse must have been confined to a mental hospital for three years and declared permanently insane.
What Services Do You Provide Your Spouse?
You’ll want to consider how you help your spouse as a caregiver because a divorce settlement will need to account for the expense of caring for your spouse.
Do you help with any of the following tasks?
- Cooking for your spouse,
- Bathing and dressing your spouse,
- Cleaning the house,
- Driving your spouse to appointments, and
- Helping your spouse with medications.
Which of the tasks could your spouse handle and which would they need to find someone else to do? If your spouse will need to hire someone to help them, do they have enough income to do this?
Government assistance may pay for some of these services, or the court may require you to pay spousal support to cover the expense. Before you decide on leaving a disabled spouse, figure out who will pay for these caregiving services.
Do You Have Minor Children?
If you have minor children, you need to think about child custody. Can your spouse care for your children? If so, will you challenge your spouse for custody?
Your spouse does not lose parental rights because of their disability, but they may require help to care for your children. If your spouse gets custody of your children, expect to pay child support.
What Legal Authority Do You Have Over Your Spouse?
You may have power of attorney or guardianship over your disabled spouse. If so, you will probably need to update these documents and find someone else to assume these roles.
Can You Afford Spousal Support?
Usually, Texas courts grant spousal support for a limited time. However, a court may award a disabled person spousal support for an indefinite time.
The Texas Family Code says that a court may order spousal support when your spouse cannot earn sufficient income to provide for their “minimum reasonable needs because of an incapacitating physical or mental disability.” As long as your spouse is disabled and unmarried, the court may require you to pay spousal support.
The court can order you to pay each month up to the lesser of:
- $5,000, or
- 20% of your salary.
If you know your spouse will need financial support after a divorce, you should consider whether you can afford these spousal support payments and how they will impact your lifestyle.
Contact an Experienced Texas Divorce Attorney
Before you decide to divorce your disabled spouse, you should contact a divorce attorney. At The Larson Law Office, we understand the complex nature of divorcing a disabled spouse, including Texas divorce laws and federal aid programs that may factor into your spouse’s support.
We can help you calculate the potential costs of your divorce, disabled spouse support, and other expenses so that you can make the best decision. If there is any question about whether your spouse’s disability prevents them from working, we can request a medical or psychological evaluation.
When you contact us, you’ll speak to our attorneys directly instead of going through a paralegal. Our attorneys give honest advice to each client, and we won’t pressure you to rush into anything. We provide personalized legal service that seeks the best possible outcome for your situation.