Divorce proceedings can be complicated, depending on factors such as whether the couple have shared assets, if there was a prenuptial agreement, and if there are children from the marriage. Considering the current pandemic, one issue of recent concern is what impact a serious or terminal illness of one spouse has on a divorce proceeding. Chronic illness can significantly change the dynamic of a marriage and create enough strain that it breaks down. Illnesses have been shown to have a measurable impact on marriage and the incidence of divorce. For example, certain studies determined that:
- Older couples experience illness more frequently than younger couples
- Husbands are more likely to become chronically or seriously ill
- Onset of a husband’s illness does not increase the likelihood of divorce
- Onset of a wife’s illness increases the likelihood of divorce
These findings were compiled in an article published in the Journal of Health and Social Behavior, which noted that divorce among adults over 50 years old doubled in the past two decades. In 2010, one in four divorces were among older couples. Middle-aged individuals experience the onset of serious health conditions. This, combined with more permissive attitudes toward divorce, can be an important risk factor for divorce.
Another recent study examined divorce rates among married couples where a spouse over the age of 50 contracted a serious illness. One-third of the marriages resulted in divorce, while almost one-quarter resulted in widowhood. The study also found a six percent increase of a husband divorcing his sick wife. However, the study was unable to identify a cause for this distinction. The nature of the illness and the duration of the disability it creates will vary and impact caregiving burden, work limitations, and curtailment of other life activities, such as socializing.
A stroke is an example of one of the most debilitating conditions occurring in a marriage. Depending on its severity, a spouse’s stroke can drastically change the marriage dynamic. In its most extreme form, stroke can force one spouse to take on all duties of generating income and caregiving. The physical, mental, emotional, and financial burdens of this will alter the marital relationship. A significant aspect of illness and its impact on a marriage is whether it causes a decline in cognitive abilities. If a spouse experiences serious cognitive decline, then the couple’s ability to remain emotionally connected can be eroded and cause serious stress on the couple. Cognitive disability can be particularly damaging to the relationship. Also, the duration and probability of recovery is also relevant. Divorce risk is most likely higher for conditions where recovery is unlikely, and caregiving may be required for years.
Once the Decision to Divorce is Made
When filing for divorce, one issue that is often overlooked is health care planning. Health care costs are covered by employers. Many couples choose to get their family’s health care from one plan and decide which is best, depending on factors such as cost and coverage. After divorce, this will no longer be possible. Similarly, if only one spouse works or qualifies for employer-paid health benefits, the dependent spouse will need to obtain health insurance elsewhere.
The federal Consolidated Omnibus Reconciliation Act (COBRA) requires employers to continue to provide health insurance coverage in a variety of situations. An employer is required to continue to offer health insurance coverage for their employee’s former spouse for up to 36 months following a divorce. COBRA only applies to employers with 20 or more employees but does not apply to health benefits for children. In addition, COBRA is not free and can be quite expensive.
How health insurance has been paid for during the marriage will certainly need to change. If one spouse is chronically ill, then considerations regarding the illness, including its impact on the ill spouse’s ability to work; expenses beyond direct health care, such as assistance in daily tasks; and health insurance costs, can all impact terms of the divorce settlement.
How is Alimony Determined?
Deciding the amount and duration of alimony is the court’s tool to balance the financial burden of living separate lives after divorce. The goal is to have a relatively equitable distribution of assets and financial support so that the standard of living achieved during the marriage is not forfeited by one spouse as a result of divorce.
The lower-earning or non-working spouse is paid by the other spouse to address inequitable economic effects of the divorce. The Uniform Marriage and Divorce Act is a template used by many states as a basis for determining alimony in divorce. New Jersey divorce laws require courts to consider the following factors when deciding alimony:
- Each spouse’s age, physical condition, emotional state, and earning ability
- Capacity of the paying spouse to support the recipient and themselves at the same time
- Time necessary for the recipient to earn enough education or training to be self-sufficient
- Duration of marriage
Courts in New Jersey must weigh certain statutory factors in determining alimony. Beyond those mentioned above, additional factors are:
- Earning capacities, education levels, vocational skills, and employability of both parties
- Length of any absences from the job market
- Parental responsibilities for any children
- Time and expenses needed to acquire education to earn a living
- History of financial or non-financial contributions to the marriage
- Equitable distribution of property
- Income available from investment of assets
Courts may also consider other factors they determine are relevant. In the case of an ill spouse, all factors will be influenced by the degree and duration of the illness and its likely progression or potential for improvement. New Jersey offers the following four types of alimony:
- Limited Duration Alimony: Provides payments for a fixed period that cannot exceed the length of the marriage and usually applies to marriages of less than 20 years.
- Open Duration Alimony: When a spouse lacks equal, present, or future earning capacity and the marriage lasted at least 20 years.
- Reimbursement Alimony: Provides repayment if one spouse provided financial support to the other to pursue a higher level of education.
- Rehabilitative Alimony: Provides payment to a financially dependent spouse while they pursue training and/or education to be more viable in the job market.
Depending on the circumstance, an illness can impact the type, amount, and duration of alimony payments. These payments can be used to cover anticipated health insurance costs, as well as other costs associated with care for the ill spouse.
The attorneys at Burnham Douglass Help Clients with All Types of Divorce Issues. It is never easy to file for a divorce, particularly when one spouse is ill. If you have concerns about filing for divorce, contact Burnham Douglass. We help clients seek fair and appropriate divorce outcomes so that they can move on with their lives. Located in Marlton and Northfield, New Jersey, we serve clients throughout South Jersey, including Atlantic County, Burlington County, Camden County, Gloucester County, and Mercer County. To set up a free consultation, please call 856-751-5505 or complete our online form.