Personal health is a very important aspect of our lives, but for some reason we do not seem to give it as much thought as we should until that health is compromised. It is cold and flu season right now and many of you reading this have either had a cold this year, or are going to catch one in the near future. To those readers who will avoid getting sick this year, please tell us your secrets because we want to know.
Getting the cold or the flu is not the “health” I am referring to in this blog. When I discuss health, I am referring to long-term or chronic health issues such as Lyme’s disease. This also includes mental health issues such as clinical depression, as well as physical disabilities like carpel tunnel syndrome or paraplegia. These chronic health issues are all very different, but they do have one thing in common; they often impact a person’s ability to work.
Being medically unable to work – either full time or part time – has a significant impact on the issues of child and spousal support. If you cannot work, or are limited to a few hours a week, chances are good your income will be minimal.
The income of the parties is a major factor in setting guideline child support. If a party receiving child support suddenly cannot work for medical reasons, their child support will most likely increase. The opposite is true for a party paying child support; if they are suddenly incapable of working for valid medical reasons, their child support obligation will most certainly go down. In fact, there is a chance the party paying support could become the party receiving support in certain circumstances
Income is also a major factor in a court making orders for spousal support. [See Family Code §4320 (a-c)] Health, that is the health of the parties, is also a specific factor the Court must look at when deciding how much spousal support should be paid in any particular case. [See Family Code §4320(h)].
Thus, if your health is impacting your ability to work and make a living, it will affect the child and spousal support orders in your case.
As mentioned earlier in the blog, sometimes the health issues are so severe that that the party afflicted is unable to obtain or maintain a job of any kind. Under these circumstances, the party suffering from chronic health issues will need to consider whether or not to present this information to the Court in order to modify child or spousal support. In certain cases, such as physical disabilities or catastrophic injuries, this is an easy decision. There are however other scenarios where it is not as simple as that, such as mental health issues.
Making the decision to raise this information as a defense is not one that should be made lightly because of the consequences of doing so. Medical, health, or psychological information about a person is protected from discovery or inquiry under the doctor/patient and therapist/patient privilege. This is a nearly absolute privilege, so even if the other party wanted to get your medical information they have neither the right nor the ability to do so.
That changes as soon as you “put your health at issue.” By so doing, you waive those privileges and allow the other party and their attorney the right to request, via discovery, all of your medical records related to the conditions put at issue. It also allows the other party the ability to request an Independent Medical Examination (IME) using a medical professional of their choice in order to get a second opinion on your condition.
Not only is this an invasion of your privacy, but there could be collateral damage to other areas of your family law case. If your mental or physical health is found to be a hindrance to your ability to work, the other side could argue that it is also a hindrance to your ability to provide proper care to the children. (It is worth noting that in California a physical handicap is not a sufficient reason by itself to deny a parent custody of a child; Marriage of Carney and Family Code §3049).
If your long term health is an issue in your care, there are other risks to putting your health at issue that you should discuss with a qualified family law attorney. These include weighing the risk/reward of presenting your medical condition. The attorneys at Bickford Blado & Botros have a great deal of experience addressing these issues and can help navigate your case through the process.
Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding how your health can impact support. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.