In my last article, I talked about spousal support and how it is meant to be a temporary source of income for someone transitioning from being a stay-at-home spouse to a newly-divorced person entering the workforce. There’s one important exception to discuss, though-a divorce that involves someone who is disabled and unable to work.
If the court determines a person is permanently unemployable, that person could be eligible to receive lifetime spousal support in a divorce. The burden under the statute is actually not very high. However, that said, a number of judges are disinclined to award spousal support, so a lawyer arguing that a client is permanently unemployable will have to be able to make that case. These cases will likely involve persons eligible for and receiving Social Security, rather than someone who has limited mobility. But this is not the threshold in this determination.
The potential obligee should first be able to demonstrate that there is virtually no job available that can accommodate his or her conditions/limitations. In the age of the Internet, there are many more work from home options than there once were. There may be lucrative part-time positions allowing for a flexible schedule to attend medical appointments or to provide much needed periods of rest or recovery in between shifts. Additionally, if there are fitting job opportunities available in a new field, it may be a good idea to find out what education would be needed to transition to the new field.
The person seeking support should have applied, or be in the process of applying, for disability and will need to have some medical records to verify the claim of being permanently unemployable. These cases can sometimes get into difficult questions of how many good days vs. bad days a person has, how much pain the person experiences, and the possibility of work exacerbating a person’s pain level, conditions, or disability.
It’s important to note that an obligor of spousal maintenance may go back to court to reduce maintenance payments or stop them all together. For instance, a person who is cured of a condition that created the “permanently unemployable” status will no longer be eligible for spousal maintenance. However, spousal maintenance, once awarded, cannot be increased. So, if a person receiving spousal maintenance suddenly is diagnosed with late-stage cancer, and needs to pay those medical costs, increased spousal support is not an option.
With an awareness of outstanding medical costs or medical issues affecting one spouse’s ability to work, the court may address these needs with a division of property favoring the spouse unable to work, in lieu of spousal support. The Murff v. Murff case set out health of the spouses as a factor to be considered in a division of property and may assist in how a division of property can be utilized in these difficult situations.
No matter what side of the divorce you’re on in these cases, it’s vital to know your financial status, and what options are available. The Law Office of Lisa Vance has experience with these very challenging (and often very emotional cases), and we can guide you through both what is realistic and what is possible.