SoaringSpirits

I am livid.

I've hired one of the top divorce firms in the state ($1000 for one paragraph, LOL) to draft the Spousal Support section of our marital settlement agreement. This is to afford me better protection if, in the future, my lovely alcoholic X tries to come after me for spousal support. This has been a big concern for me.

But here's the attorney's concern:

I am concerned that the carve-out for alcohol consumption (which could be likened to alcoholism) would require a court to enforce a provision that intentionally “discriminates” (for lack of a better word) against a recognized disability. Again, spousal support limitations in MSA’s are generally enforceable, but the tie of the limitation to something that is protected in other areas of the law (a recognized ) adds a wrinkle that could lead a trial judge to create a judicial exception.

Translation? Alcoholism is considered a disability and a provision in our MSA limiting his right to get support from me due to a disability starts to get into disability-rights law.

Makes it real hard for me to embrace the alcoholism-as-disease concept these days.

patientlywaitin

Am I getting this right?

He is considered disabled because he is an alcoholic so they could force you to pay for his booze?

MissFixit

can you be disable too? depression? anxiety? if you are disable too do you have to pay him?

SoaringSpirits

Yup.

soberhawk

I read that sentence as an advice not to focus on your husbonds alcohol consumption in the divorce procedings as it could potentially damage your case, bringing the MSA and american disability laws in conflict. Are you unable to get an divorce without getting this aspect into play?

Upsetnneedhelp

I know up until the late 80's one could get disability for being a alcoholic or drug addict. It's interesting that people find alcoholism as a disease only when they want. It is either a disease and should be treated as such or isn't. There is no middle ground.

SoaringSpirits

Divorce part was final on 12/30, so at this point it's the MSA being hammered out. The two had to be bifurcated due to XAH not cooperating with the process. Lawyer's advice was basically to strike all references to alcohol or alcoholism from the MSA, since it memorializes XAH's "disability." XAH fervently denies he's an alcoholic, which is (finally!) coming in handy.

The wrinkle is that the only other provision that refers to alcohol is the one about custody. XAH currently does Soberlink breathalyzer tests 3x daily when he has the kids. Attorney's advice to me was that to remove this provision and discontinue Soberlink completely, which of course is definitely not in the "best interest" of the children. A real Catch 22.

Springs

I'd get a second opinion.

fairlyuncertain

I second the second opinion.
I think that if you have more than he does, he may be entitled to some, given that it's california.

But could you make some sort of provision for a trust that would directly pay expenses to a landlord or utility company, rather than giving him cash? That way if he relapses, he wouldn't see you as a cash source...

Taking5

Close. He could be declared disabled by alcoholism, which can be, like any other disability case, a long, drawn out, complicated procedure. Yes you can even get disability checks for alcoholism afterwards. He would have to pay for his own booze from the disability checks though.

The attorney is hesitant to use the word "alcoholism" because if he is declared disabled in the future, there is a certain lack of culpability that can take place. It is better to get spousal support without referring to his potential disability. If he had heart issues or diabetes you would never bring this up in the spousal support section of the divorce - that would be helping his lawyer by giving him ammunition to reduce spousal support.

IMHO, the lawyer is doing a great service by not bring this up.

littlefish

Maybe there is a difference between an anticipated plea for the disability plea and how it might be viewed in a court. Can it be assumed that any judge or jury will accept without question the suggestion that alcoholism is a disability? That would have to be recognized in the court, and I wonder if there is a precedent for it.
How would a judge feel about this case if it comes on the heels of a string of DUI cases and assault under the influence? I wonder if "disability" would be the first thing that comes to mind.

NoelleR

Neither judge nor jury need to accept alcoholism as a disability; three's no suggestion, it's a fact; yes, it must be recognized by the court as such.....a precedent.........? well, there sure is................:

According to the ADA (Americans with Disability Act), alcoholism IS considered a disability; no judge's ruling necessary.

(o:
NoelleR

P.S. .....ad btw, it's not just the state of California; it's all states; the ADA is federal.

patientlywaitin

I would think a judge still had some discretion.

Murderers do not walk free because they are mentally disabled.

You do not get out of a DUI for your disability. They don't just give you a pass or put you in handicap jail, probation, suspension.

They don't make your boss pay for your disability after you've been fired for alcohol related reasons....

I think I would try to have a provision that states you will not go after him for child support as long as he lets go of spousal support. It costs you more to raise the kids then it does him (or should anyway)

littlefish

wow! my jaw dropped when I read this. It just sounds utterly nuts! The ADA recognition of alcoholism as a disability is SO in the wrong direction, enabling, enabling, enabling.

LaTeeDa

Nope, can't do that either. Under the law, both parents are obligated to support their children. You can agree to no child support, but you cannot "trade" it for something else. My MSA got bounced for this very reason. (and I am in California)

L

wanttobehealthy

CA sounds about as insane as my state...

What a nightmare...

SoaringSpirits

Yes, this is true. When we originally began our MSA, the whole child custody/support section was physically a separate document. The mediator attorney set it up like this because he wanted us to remember, as we negotiated, that the child provisions were stand-alone and could not be traded around with other pieces of the MSA.

SoaringSpirits

Christian Science article on alcohol disability claim

To complicate matters, XAH and I co-own a successful firm together (successful now because I wrestled it out of his control a year ago, and we're back on track again). I hold controlling interest and am the managing partner. Which means I am his boss. This is one reason why I'm having to make sure all the i's are dotted in this process. Our situation not only covers family law, but employment law, corporate law, and, as I've discovered, crosses over into disability law now.

A lot of this fuss centers around preparing for the possibility that XAH will eventually progress to the point where he can't work, or I can't have him at work. He's functioning quite well now, and doing his job. I have to make sure our MSA is tight and doesn't conflict too much with the other laws that may kick in to protect him if push comes to shove down the road.

It's all so crazy, I have to laugh. I think the laywers should be paying ME for the great education they are getting, right?

Florence

!!!

I'm sure you've explored this, but it seems like there would be a process in place to legally untangle yourself from him professionally, personally, and financially. Like, buy him out of his share of the business, or put him in a position where you no longer have direct control over his work. Then, divorce him. I have no idea, I'm not a lawyer. Good luck!

SoaringSpirits

Unfortunately, I have.

I'm now onto the fifth and sixth opinion. I had to find a hot shot divorce attorney with an employment and disability rights law background.
Not an easy task, LOL.