What happens when a medical condition arises after you’ve already begun the process of filing for divorce? In most cases, the medical issue will affect spousal maintenance if it occurred while the two people were legally married, and, in some cases, even after the divorce is finalized.
Let’s take a closer look.
Maintenance and Disability
The first thing to look at in this conversation is spousal maintenance. I’ve written about this topic previously [LINK: Maintenance Blog Post], and obviously you may find yourself facing a larger monthly payment if your soon-to-be-former spouse now has a greater need based on disability.
The State wants both parties to have a standard of living that is comparable to the standard maintained during the term of the marriage. So, if one partner was the breadwinner and the other was a homemaker, the breadwinner will very likely end up making monthly maintenance payments to enable the other person to maintain a comparable lifestyle. In Colorado, maintenance payments typically last half the length of the marriage (if they were married for ten years, payments would occur for five years) and terminate upon the recipient’s remarriage and/or death.
However, things can get more complicated and emotional if the couple legally separates and files for divorce, but during that time period one person has a medical emergency and is unable to care for him- or herself.
Now, although the healthy partner has done nothing wrong, since the emergency occurred during a period of time when the two people were legally wed, the cost of the disability will be factored into the maintenance payments.
An Example in Action
For example, let’s say hypothetically that the husband is the breadwinner. The couple has just filed for divorce and is living separately when the wife has a heart attack and has a permanent disability. She now must hire a caretaker to live with her 24/7 just to maintain her day-to-day life, and she cannot work.
Even though the husband had nothing to do with her stroke, the costs of her new disability—including the lost income since she cannot work—will be factored into the monthly maintenance payments he will make to her. And, unlike regular maintenance, if there is a disability involved, there is no assurance that the maintenance ends after half the length of the marriage.
In other words, he may end up paying her maintenance until she dies, which could be a very long time.
It may not seem fair: he did nothing wrong, why should he be financially responsible? On the other side of the coin, the wife can say, “Listen, I’m incapable of earning what I was bringing in before my heart attack. He has a maintenance obligation because we were still married when it happened.”
There really is no right answer, and each situation is different. Speaking in very general terms, the State would rather have the former spouse bear the financial burden of the situation than have the disabled spouse fall into poverty because of his or her medical condition. Ultimately, it’s a difficult situation for everyone.
If you find yourself in a situation like this, let’s talk. It is always advised to have an experienced attorney on your side when going through divorce. Call us at 303-449-1873 to set up a free consultation.