How We Help Clients with Disability Issues Navigate Divorce

Nurse pushing patient in wheelchair up ramp into a car

Divorce is stressful even in the most straightforward cases. It can be even more difficult, however, for partners with disabilities or parents of disabled children who need extra care. According to the most recent American Community Survey statistics, roughly 12% of Texans have a disability. That means a little more than 3.6 million Texans have a disability, and their needs will come up in family law cases.

Disabilities are specifically considered in three areas of Texas family law: spousal support, child support for adult children, and the division of marital property. A good lawyer will ensure that a client’s disability needs are considered throughout the separation process.

Division of Property

When a trial court divides property between divorcing spouses, it may consider a spouse's or child's disability in determining who gets what. Judges must consider “the rights of each party and any children of the marriage,” which includes a spouse’s capacities and abilities, as well as relative physical conditions. Courts have also ruled that parents supporting a disabled adult child may be entitled to a greater share of the divided property.

Spousal Maintenance

Texas courts can also consider disabilities in awarding spousal maintenance, but there’s a high bar to pass. A disabled spouse must first show they will lack sufficient property to meet their needs. For example, for a couple with a shared estate of $10 million, a spouse who is disabled might end a divorce with $5 million in assets. Even if the other spouse makes $1 million per year, the disabled spouse may not get spousal maintenance because they will have enough property to cover their needs.

If a disabled spouse can show they won’t have enough property after a divorce, they then have to prove they won’t be able to earn a living because of an incapacitating physical or mental disability. The disability doesn’t need to be entirely incapacitating, but “must only prevent that spouse from earning an income sufficient enough to meet her minimum reasonable needs.” In one notable case, a wife who was able to work and was working part-time qualified for spousal maintenance because she had a renal failure diagnosis, daily dialysis treatment, and was waiting on a kidney transplant.

Spousal maintenance can also be ordered if the spouse requesting maintenance is caring for a disabled child of the marriage. The child must require substantial care and personal supervision that prevents the spouse from earning sufficient income to provide for their minimum reasonable needs.

Child Support After Age 18

In Texas, child support typically ends at age 18 or graduation from high school, whichever is later. In some rare cases, courts can order continued support if the child has a significant physical, cognitive, or emotional disability that requires extra care and personal supervision.

Parents will also need to show the child will not be capable of supporting themselves once they reach maturity. If a child is institutionalized, a court may award support to the caretaker parent or even directly to the child if the child is over 18 years of age.

The Bottom Line

Texas judges are bound by the law, and Texas family laws can be tough for those seeking accommodations for disability. But they usually get it right when it comes to the needs of children in a divorce.

For example, a judge can consider which spouse will have the majority of the time with the child and split assets accordingly. If a child has special needs and the mother is the primary caregiver, a judge might give her a greater share of the community estate to account for the fact that she is taking on most of the parenting time. Even though she may not receive child support after the child turns 18, she might get more than a typical parent in the meantime because of that child’s disability.

The Epstein Family Law Approach

When we work for a client seeking relief based on their disability or the disability of a child they care for, we examine every area of the case that might be impacted by those disabilities. That means gathering all the information we need at the outset, including the documentation and testimony to prove our client’s case.

We might find an expert witness on disability needs or a mental health professional who can evaluate a child and testify to their needs. This helps us bring as much leverage as possible to the bargaining table to make sure the client or their child is well taken care of after a divorce.

While there is, of course, no guarantee that a court will rule in your favor in every instance, it’s clear from the Texas Family Code and relevant case law that clients with disabilities can find some relief.

About Robert Epstein

Robert Epstein is an experienced family law attorney with the strategic capabilities, creativity, and intense drive to resolve challenging cases both in and out of the courtroom. Board Certified in Family Law by the Texas Board of Legal Specialization since 2014 and licensed to practice law in the State of Texas since 2008, Robert has been recognized for his expertise in family law by Super Lawyers (Thomson-Reuters), Best Lawyers in Dallas (D Magazine), Top Attorneys (Fort Worth Magazine), and Power Players of Dallas (Modern Luxury Magazine). Contact us to schedule a consultation.

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