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How a Spouse's Substance Abuse May Change Your Divorce Strategy

Posted by Aaron Thomas | Jun 12, 2019

Millions of Americans suffer from addiction, including to alcohol, illegal drugs, and prescription drugs. Oftentimes, those who are battling addiction can create serious problems within their own families, which may lead to divorce. If you're divorcing a spouse with an addiction, you should understand how this issue may affect child custody and property division. This article explains how a spouse's substance abuse may impact your strategy during a divorce.

Filing for Divorce Based on Substance Abuse

Today, all U.S. states allow spouses to file for divorce based on no-fault grounds, such as separation or "irreconcilable differences," meaning you and your spouse cannot get along anymore. With no-fault divorce, you don't have to prove that your spouse did something to cause the breakup.

In most states, however, including Texas and New York, you can still file for divorce based on fault grounds, like adultery, cruel treatment, and drug or alcohol abuse. In the states that still allow these fault-based divorces, you'll always be able to ask for a divorce based on your spouse's substance abuse.

Even in the states where you can only file for a no-fault divorce, such as California and Florida, you can still introduce evidence of your spouse's substance abuse during the case as it may relate to custody and other issues in the divorce.

The sober spouse generally has an upper hand in negotiations and many times is able to obtain a favorable settlement without having to publicly try the case in court.

How Substance Abuse Affects Child Custody

One area where substance abuse factors in heavily is child custody. While moderate drinking won't affect a custody decision, courts will strongly consider any substance abuse issue that impacts parenting ability. All other things being equal, a parent with a substance abuse problem is less likely to win child custody.

Courts have a number of options to protect children from a parent's substance abuse issues during visitation periods. The judge may order that there be no overnight visitation. The court could also require a professional to supervise all visitation periods. Courts often require that addicted parents submit to periodic drug and alcohol screens, attend Alcoholics Anonymous or Narcotics Anonymous meetings, or receive addiction treatment. Custody orders almost always require parents to abstain from use of alcohol or controlled substances before and during visitation.

In extreme cases, a court may award full custody of children to the sober parent, with the addicted parent having no visitation at all. In cases where the addicted parent has caused serious injury to a child due to substance abuse, a judge may terminate that parent's custodial rights altogether.

How Substance Abuse Affects the Division of Assets

In many states, courts won't consider fault when dividing a marital estate (everything a couple owns together), but in some states, a spouse's behavior during the marriage is relevant to the division of property. In these states, the judge will consider a spouse's substance abuse when deciding how much of the joint property each spouse should receive.

A court may decide to award a larger share of the marital estate to the sober spouse, particularly if the addicted spouse's substance abuse issues negatively impacted the couple's finances. For example, if the addicted parent spent a large amount of the marital savings on drugs and alcohol, a court may award the sober spouse a larger share of the couple's assets as a form of reimbursement.

How Substance Abuse Affects Alimony

Similar to how substance abuse affects property division, addiction is most likely to affect alimony when an addicted spouse has harmed the couple's finances. In most states, a judge could decide to award additional alimony to the spouse of an addict if the addict drained the couple's finances fueling the addiction.

In some relatively uncommon cases, a sober spouse could be required to pay alimony to an addicted spouse. If a spouse's drug addiction has led to a mental illness requiring institutionalization, the sober spouse could be required to cover the costs of treatment not covered by disability benefits.

How Substance Abuse Affects Negotiating a Divorce Settlement

If your spouse has a history of addiction problems, he or she will usually be at a detriment in several aspects of the divorce. Courts take substance abuse issues very seriously, and there can be stiff repercussions in a divorce case for an addicted spouse, particularly when it comes to child custody.

Public allegations of addiction problems could harm that spouse's reputation, career, or even result in criminal charges. Because of this, the sober spouse generally has an upper hand in negotiations and many times is able to obtain a favorable settlement without having to publicly try the case in court.

If you are divorcing a spouse with substance abuse issues, you should contact our office to help you with your divorce strategy.


About the Author

Aaron Thomas

Founding Attorney Aaron Thomas is a well-known litigator, having won dozens of jury trials and bench trials across the state of Georgia...

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