Divorcing an addict comes with its own set of unique challenges, and requires specific strategies to address them. In the first part of this series, we discuss the prevalence of addiction as a leading factor in divorce, strategies for filing for divorce from an addict, and custody involving substance abuse. We continue with two remaining issues: Division of Assets and Alimony.
Division of Assets in Divorce with an Addict
Divorce laws are mandated at the state level. This means the laws in one state can be different than laws governing divorce in the neighboring state. It is crucial to always check with an attorney in your state of residence, or do your own research on your state laws, before taking action.
The Issue of Economic Impact
In many states, courts do not consider fault when making a judgment on division of property. However, in some states, a spouse’s behavior during the marriage is relevant, and a judge will consider a spouse’s substance abuse when dividing the marital estate. The legal category of fault that would apply if your spouse is an addict is “marital misconduct.” Currently, a majority of states will consider marital misconduct only if it has an “economic impact” on the marital finances.
There are a smaller number of states that are allowed to consider marital misconduct, such as the behavior of an addict, regardless if the misconduct had a negative economic impact on the marital estate. In states where martial misconduct is admissible as a consideration, the court has the discretion to award a larger share of the marital estate to the sober spouse.
Legality of Fault
Alcoholism itself is not usually considered fault. Since the medical community increasingly views alcoholism as a physical disease, it does not constitute a “moral failure” alone. What can be considered fault is the “economic impact” of the disease of addiction. Again, this is the fallout from an alcoholic’s chaotic behavior on the marital family and estate. DUI convictions, inability to stay employed, crashing cars, spending copious amounts of money on alcohol and alcohol induced spending binges can all be negative impacts that constitute fault under “marital misconduct.”
Generally, when divorcing an addict, drug abuse is viewed the same as alcohol abuse. Addiction itself is not likely to constitute fault, but in many states where fault can be introduced as a factor in division of assets, the court is free to consider any negative consequences of the addiction on either you and your family or the marital estate.
Simply put, the tangible effects of alcohol or drug abuse are a legal consideration in states where it is permissible to consider marital misconduct. For example, if your ex’s alcoholism limited her ability to contribute to the marriage financially and her behavior under the influence of alcohol had substantial negative consequences on the marriage, you would have a case to introduce marital misconduct with economic impact.
An addiction that will result in public scrutiny, possibly ruining your ex-wife’s reputation, career opportunities, and even putting her at risk for criminal prosecution, can be a handy bargaining chip in asset negotiations. Your ex-wife may agree to forgo a humiliating court battle and settle on favorable terms. It is advisable to discuss this option with your attorney. Not only will it save you time and money to keep the fight out of the courts, but it will keep any kids involved in the marriage from additional trauma.
Alimony and Addiction
Unlike with child support where the formulas for payments are clear and quite rigid, in most states, the amount and duration of spousal support payments are under total discretion of the judge. In fact, only about a dozen states even have general guidelines for calculating alimony. While a sympathetic judge could admonish your ex for the damage she caused with her addiction; there is no way to predict the outcome of a decision that is wholly in the hands of a judge. It is advisable to discuss with your attorney if it may be a better tactic to try and negotiate with your ex directly so you can avoid the risk of an unfavorable judgment.
While most states do not set guidelines for judges in determining alimony, there are a few factors that are commonly used to calculate a starting figure. The judge then factors in other circumstances of the marriage and arrives at an amount and duration for payments. Let’s look at some of the factors that come into play when divorcing an addict.
1. Need and Ability to Pay
If the court decides your ex-wife is entitled to support, the next step is to ascertain her need and balance that with your ability to pay. To do so, the judge may take into account:
- how the property is being divided in the divorce
- the standard of living during the marriage, and her ability to maintain that standard without your support
- each spouse’s separate income, assets, and obligations
- the length of the marriage (used more to decide how long support should continue and not the amount)
- whether you both lived together before you were married and whether the period of cohabitation should be included in the length of the marriage
- each spouse’s age and health
- the needs of the children, and if child care responsibilities affect your ex-wife’s ability to return to work
- whether the dependent spouse left the workforce to be a homemaker or raise children
- how long the dependent spouse has been out of the workforce and her marketable skills
- contributions that either spouse made to the other’s training, education, or career advancement
- Any assets that may be forthcoming in the future (such as a large inheritance)
- any additional factors the judge finds pertinent to the case
2. Earning Capacity
Beyond considering your actual income, a judge may examine your general ability to earn money. Let’s say you have a medical degree, but you gave up practicing medicine to pursue your passion for writing science fiction novels. The judge can “impute” to you the higher income of a medical professional with your same training. You would then be ordered to pay support in the amount consistent with your earning ability, and not with your actual income as a self-published novelist. The rationale for considering earning capacity is to avoid punishing one spouse financially for the other spouse’s decision to voluntarily choose a lower standard of living.
Just as with division of assets, fault can be considered in some states. You can argue that fault should be considered even if you did not file for divorce on the grounds of fault. If the court sees it your way, it can reduce support payments.
A judge may take a spouse’s addiction into account when determining alimony if she has depleted the marital assets to maintain her addiction. As with division of assets, a substance abuse problem gives you the upper hand, and often addicts will agree to terms which favor the sober spouse to stay out of court. While addiction does not automatically inhibit your ex-wife from receiving an equitable share of marital assets in a marriage, or from receiving a judgment for alimony, it may be taken into account and reduce the share of assets and alimony, perhaps considerably.
Divorcing an Addict in Treatment
Divorcing an addict can be tricky when it comes to support. In some rare cases, a sober spouse could be required to pay alimony to an addicted spouse to help with her treatment expenses. For instance, if her addiction was deemed to be the result of a mental illness, or to have led to a mental illness, you as the sober spouse may be ordered to pay any additional costs of treatment not covered by disability benefits.
Since in most states, alimony is based on a number of factors that are used to determine your wife’s needs against your ability to pay, if your ex-wife’s treatment needs are extensive, but your ability to pay is limited, that will be taken into account and help balance each other out.
Discuss options with an attorney, and you can likely figure out a settlement that will help your wife get back on her feet, and able to get and hold a job of her own, while ensuring the money will not be spent on alcohol or narcotics. Helping your wife overcome her addiction with a professional recovery program may be your best bet for ensuring that she can become economically independent, and even be able to help support her children, lifting the burden solely off you.
Wherever you live in the country, these online resources can help you find support and information for dealing with your wife’s addiction. You do not have to go through this alone.
- National Institute on Chemical Dependency
- American Academy of HealthCare Providers in the Addictive Illnesses
- Association of Intervention Specialists
- Family Intervention Institute
- Full Circle Intervention
- Drug Rehab Advice Center