Divorce & Disability in Colorado

by Beverly Bird

Dealing with a disability – either your own of that of a loved one – is difficult enough when the family is intact. When spouses break up and the court gets involved, factors of disability add other considerations to the proceedings. Most states, including Colorado, have incorporated policies into their legislative codes that provide for this.

Spousal Support

If your spouse is disabled and cannot earn enough to support herself, it's likely that a Colorado court will order you to pay spousal support, particularly if your marriage was of long duration and the disability occurred during this time. Although Colorado law provides for short-term alimony until a spouse can gain financial independence, a disabled spouse probably is not going to be able to do that so the award would most likely be permanent. In divorce law, permanent support typically means open-ended until some event such as your spouse's remarriage or death terminates the obligation. The amount of spousal support depends on your ability to pay it without compromising your own needs. If you earn $5,000 a month, the judge won't order you to pay her $4,000, leaving you with only $1,000 to pay your own bills. The idea is not that your spouse should live better than you do, but that the income available to each of you should be about equal.

Child Support

Child support normally terminates in Colorado when your child reaches the age of 19. If she's disabled, however, it could last longer. A judge can include a term in your divorce decree that orders you to keep paying until such time as your child is able to hold down gainful employment, which may or may not ever happen. This rule applies whether your child is physically or mentally disabled. For purposes of calculating child support, Colorado uses both parents' incomes. If either you or your spouse are collecting disability insurance benefits, this counts as income, but if your child receives Social Security benefits due to your disability, this is not factored in.

Effect on Custody

A parent's disability is not supposed to have any bearing on a Colorado court's custody decision, but as a practical matter, it might. It can't be the specific reason a parent is denied custody, but she may well be unsuitable as the custodial parent if the court finds that placing your child in her daily care is not in your child's best interests. For example, if your spouse is confined to a wheelchair and is unable to keep up with your active toddler, the judge can't place residential custody with her without potentially endangering your child. By the same token, if your spouse suffers a mental illness for which she is taking medication, and if her illness is under control, there's usually no reason to deny her custody because of it.

Property Distribution

A spouse's disability may have a small effect on property distribution as well. VA disability pay is considered an asset, but it's a spouse's separate asset under Colorado law, not marital property. Therefore, if you're receiving VA disability, you don't have to share these payments with your ex post-divorce. If you take your military retirement pay as disability, it's exempt from distribution, but the court will still assign this income to you for purposes of calculating child support or alimony.