Divorce Involving Spouses with Special Needs


Divorce is a challenging and emotionally taxing process for any couple, but when one spouse has special needs, it brings a unique set of complexities. In such cases, the court’s primary concern is to ensure that the disabled individual receives the necessary care and support after the divorce. This article explores the implications of marriage penalties for special needs individuals, considerations for marriage and divorce, acquiring benefits for those with special needs, the possibility of spousal support, and the establishment of guardianship or conservatorship.

The “Marriage Penalties” for Special Needs Individuals

Many individuals with special needs rely on government assistance to cover essential care and living expenses. However, when they decide to marry, they can encounter significant challenges. Government programs often consider the combined income and assets of the married couple when determining eligibility for benefits. As a result, the disabled individual’s benefits may be reduced or even completely revoked. For instance, Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) could be affected, leaving the special needs spouse with less financial support.

Special Needs Consideration for Marriage and Divorce

The potential loss of government benefits can be a crucial factor when a disabled individual contemplates marriage. Some might choose not to marry to safeguard their benefits, while others may proceed, understanding that it will impact their eligibility for assistance. If the couple later decides to divorce, the special needs spouse will have to re-qualify for the benefits they previously lost. Some states, like California, are actively working to address these inequalities by advocating for legislation that promotes fairness for special needs individuals.

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Accessing Benefits for Divorcing People with Special Needs

For individuals with disabilities, divorce can present multiple challenges. When a disabled spouse relied on their partner for financial and physical care, they must now seek alternative means to support themselves post-divorce. Various benefits may be available based on the individual’s disability and financial situation, including individually purchased or employer-provided disability insurance, Social Security Disability Insurance (SSDI), Supplemental Security Insurance (SSI), VA disability benefits, Social Security retirement benefits, Medicare, and Medicaid.

Divorcing couples should structure the settlement to ensure the special needs spouse retains their essential government benefits. Additionally, they will need to inform Social Security about the divorce, as some benefits might change during this process.

Financial Support for a Disabled Ex-Spouse

Even with government benefits, the resources available to a special needs spouse might not be sufficient. In such cases, the court may look to the non-disabled spouse to provide financial or healthcare assistance. If the disabled spouse cannot work and support themselves, the court may order the other spouse to pay spousal support to cover their care. However, it’s crucial to consider that spousal support and divided marital property are considered unearned income when qualifying for needs-based government benefits. This can affect the special needs individual’s eligibility for certain federal benefits.

To protect assets and support funds from affecting eligibility, a special needs trust can be established. Such trusts ensure that certain financial resources are shielded from consideration during the eligibility assessment for government benefits.

Establishing Guardianship or Conservatorship for a Disabled Ex

If a spouse becomes incapacitated and is unable to make decisions or take care of themselves, guardianship or conservatorship may be necessary. This legal arrangement appoints a guardian or conservator to manage the incapacitated spouse’s personal, financial, and health-related matters.

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Depending on the state and circumstances, a conservator or guardian may oversee various aspects of the disabled spouse’s life. In cases where the disabled spouse can still make some decisions, limited conservatorships may be considered.

In long-term marriages where one spouse becomes incapacitated, establishing a conservatorship may be preferred over divorce to preserve community property for the couple’s heirs while ensuring the incapacitated spouse receives the necessary care. Legal professionals with expertise in estate laws and family laws are invaluable resources in navigating these complex situations.

Seeking Assistance for a Special Needs Divorce

Divorcing a spouse with special needs can be overwhelming, and it requires careful consideration of legal and ethical aspects. Couples and their families should explore all available options to ensure that the special needs individual receives the care and services they require.

At Hello Divorce, we provide legal services and experienced guidance to help you make informed decisions about your divorce. We understand the complexities involved in special needs divorces and can assist you throughout the process.


Divorces involving a spouse with special needs demand careful attention to both emotional and financial complexities. Government benefits may be impacted, and spousal support might be necessary to ensure the disabled spouse receives the care they need. Additionally, guardianship or conservatorship may be considered in cases of severe incapacity. If you are facing a divorce with a special needs spouse, it’s crucial to seek professional guidance and explore all available options to protect the well-being of your loved one.


  1. Can a special needs individual lose government benefits when they get married? Yes, some government assistance programs are needs-based, and getting married might affect the disabled individual’s eligibility for benefits due to combined income and assets.
  2. Are there benefits available for disabled spouses after divorce? Yes, benefits such as SSDI, SSI, Medicare, and Medicaid might be available based on the individual’s disability and financial situation.
  3. Could I be required to pay spousal support to my disabled ex-spouse? Yes, the court may require the non-disabled spouse to provide financial or healthcare assistance to adequately support the special needs spouse.
  4. What is a special needs trust? A special needs trust is a financial tool that helps protect certain assets and support funds from affecting the disabled individual’s eligibility for government benefits.
  5. How can I establish guardianship or conservatorship for my disabled spouse? Guardianship or conservatorship can be established through legal proceedings, appointing a guardian or conservator to manage the incapacitated spouse’s affairs.
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