Divorcing Your Disabled Spouse: What to Consider

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By: Bill Henry
PublishedSep 6, 2022
5 minute read

Divorce is never easy. If you are contemplating leaving a spouse who has a disability, matters become further complicated. Your spouse may rely heavily on your health insurance or income. You may be their primary caretaker. These are all factors you must consider before divorcing your disabled spouse.

Bottom Line

If you are thinking about divorcing your disabled spouse, you should consult a Colorado family law attorney before initiating any proceedings. This is because if your spouse is disabled, you will likely pay more alimony than someone else would.

Talk to a Family Law Attorney Today

If you are considering divorcing your disabled spouse, you need to plan carefully and intentionally. Divorces involving a spouse with a significant disability are often much more complex than other divorces. A compassionate family law attorney can guide you toward the best possible future for both you and your spouse. Call 303-688-0944 today to begin your case assessment.

divorcing your disabled spouse

What to Consider Before Divorcing Your Disabled Spouse

Before you move forward with divorce proceedings, there are a number of factors to consider if your spouse is disabled. Let’s take a look at some of them:

The level of care you currently provide

One of the first things you should do is consider the amount of assistance that you offer your spouse on a daily basis.

It’s important to realize that you are under no obligation to continue providing this care once you are no longer married. However, it may come into play when the court considers assets and alimony.

For instance, do you drive him or her to appointments or arrange for their transportation? Do you help them get in the shower or run errands for them?

Even if your spouse is capable of living on their own after the divorce, he or she still may need help with those activities.

In this case, it may help to compile a detailed list of the activities that your spouse requires outside assistance to complete. Make a list of the activities they could perform on their own, as well as the ones they are unable to complete independently.

Whether you will continue to play a role in their care

If the divorce is amicable, you may continue participating in your former spouse’s care in some capacity. You and your spouse should discuss what such an arrangement may look like before going to court.

If your spouse will need additional services

Without your daily assistance in caring for them, your spouse may need additional services in your absence. This could mean some kind of professional services to maintain their standard of living.

You may arrange for a part-time or full-time caregiver and ask family and close friends for extra help.

You should also consider whether your spouse can pay for cost of care on their own or if they will need government assistance. Perhaps your spouse will qualify for Social Security and disability benefits based on their newly-single income.

Having this information in advance can greatly assist the two of you in figuring out how to cover the cost of their care without obligating you to continue the level of assistance you performed while you were married.

Again, you are under no legal obligation to provide any level of physical care to your spouse once the divorce is final. The court cannot order you to do so.

You may have to pay spousal maintenance

Does your spouse’s disability prevent them from earning a living wage on their own? If so, the court may require you to pay spousal maintenance to contribute to their care. Because your spouse has a disability, your court-ordered level of spousal support may be higher than the general population is required to pay.

Colorado courts award lifelong spousal support in only the most extreme divorce cases — for example, if one spouse is disabled and unable to work. This means you could be paying spousal support for the rest of your life, or at least until your spouse has a change in disability status, remarries, or receives additional benefits.

The severity and type of their disability will play a role in determining how much spousal support you are required to pay each month.

Additionally, courts may require you to pay for your former spouse’s health insurance or assist with medical bills. As part of your divorce agreement, your spouse may be able to remain on your employer-sponsored health insurance policy.

How Colorado Courts Determine Spousal Maintenance Awards

Spousal maintenance, commonly called alimony, is never automatically awarded in Colorado. A divorcing spouse must request it following a separation, divorce, or annulment.

Colorado courts consider the following factors when determining whether to award spousal maintenance:

  • your and your spouse’s gross income
  • the marital property allocated to each spouse
  • each spouse’s financial resources (including, but not limited to, the actual or potential income from separate or marital property)
  • reasonable financial need as established during the marriage
  • whether any maintenance awarded would be deductible for federal income tax purposes by the paying spouse and taxable income to the recipient spouse
    Colorado Revised Statutes § 14-10-114

How are Alimony Payments Determined?

A Review of Incomes

The amount of spousal maintenance is based on many factors. The income of each spouse is one of the most influential components. Colorado courts take into consideration both spouses’ ability to make money and meet their own needs.

Judges also consider:

  • the lifestyle enjoyed during the marriage
  • the distribution of marital property
  • if the recipient spouse stays home with a child under 30 months old
  • the age and health of both spouses
  • past earning history and employability of both spouses
  • the duration of the marriage
  • if temporary maintenance was paid and for how long

C.R.S. 14-10-114

As you can see, there are many factors that go into an alimony determination, income being a significant one.

What if Your Spouse Becomes Disabled After Divorce?

Colorado alimony orders are not easily changed. In fact, courts will only consider a modification request if one spouse is able to “prove a substantial and continuing change of circumstances.” Malmgren v. Malmgren, 628 P.2d 164 (Colo. App. 1981); In re DaFoe, 677 P.2d 426 (Colo. App. 1983)

A significant disability would definitely constitute a substantial and continual change of circumstances. This means your former spouse could ask the court for more alimony if she or he becomes disabled after your divorce. Let’s take a look at one Colorado case.

Background: In Re Marriage of Perlmutter

Miriam Perlmutter married her husband, David, in 1943, when she was just 18 years old. Miriam was primarily a homemaker until the couple divorced in 1966. The original divorce orders provided for the division of property, child support, alimony, and attorneys’ fees.

In 1971, a trial court ordered David to pay Miriam $130 per month in alimony. In 1978, Miriam asked the court to increase her alimony payments and was awarded $195 per month.

A Life-Changing Accident

After her divorce, Miriam supported herself by working as a babysitter and housecleaner — until she was seriously injured in a 1983 car accident. Those injuries left her confined to a walker for six months and unable to work for a year. During that time, she was largely dependent on the charity of relatives for housing and other basic needs. This prompted Miriam to ask the court for an alimony increase, which her ex-husband appealed.

Appeals Court Hears the Case

The appeals court found that Miriam’s income in 1984 — in her best months — maxed out at $145 per month. Furthermore, the car accident had depleted her already paltry financial resources. She no longer owned a car and was less physically able to travel by bus to look for work. Miriam’s injuries also left her unable to perform some of the bending, lifting, and stooping activities associated with housecleaning and babysitting:

Her testimony indicated that she lived very frugally, if not penuriously, in a one-room apartment with a minimum of clothing. She had outstanding debts for her medical care and, because she had no insurance or savings, she was unable to have follow-up surgery to remove the pins inserted in her leg. In re Marriage of Perlmutter, 772 P.2d 621, 623 (Colo. 1989)

Miriam’s husband, on the other hand, had owned an insurance business since 1944 and was the sole stockholder in the corporation. The court found that David “enjoyed a comfortable standard of living, complete with a new luxury car and a vacation home.” In re Marriage of Perlmutter, 772 P.2d 621, 624 (Colo. 1989)

Due to Miriam’s disability and David’s ability to pay, the appeals court ordered David to pay Miriam $600 a month in alimony.

Consult an Attorney Before Divorcing Your Disabled Spouse

We understand this is a tough time for you and your spouse. Our family law attorneys are here to guide you toward the best possible outcome for your family. Call 303-688-0944 today to begin your case assessment.

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