Addiction and marriage can be a devastating combination. Even when it doesn’t result in divorce, both spouses and children may be seriously damaged by the experience. It’s not unusual for the spouse battling substance abuse to deny having a problem while the other spouse tries to encourage treatment, provide love and support and keep the peace in the family. If you are in this situation, it is important for everyone in the family to get help from mental health professionals regardless of what else may happen. In some cases, separation or divorce may be the eventual result. If that seems likely, it may be helpful to understand how that could affect issues like division of property, child custody and visitation.
Does Addiction Affect How Marital Property is Divided in Divorce or Separation?
A spouse’s substance abuse is not a factor taken into account in dividing marital property. Under New York law, courts consider 14 factors in determining equitable distribution of assets. However, addiction can affect the couple’s finances. If your spouse is using marital funds to pay for drugs or alcohol, you should take steps to protect your assets. An attorney can advise you regarding your rights during marriage even if you don’t want to get separated or divorced at this time.
How Does Addiction Affect Child Custody and Parenting Time?
Addiction is relevant to child custody and visitation under New York’s ‘best interests of the child’ test. However, parents have equal rights to a relationship with their child, which means that a parent with substance abuse issues will not automatically be denied parenting time. Absent abuse or neglect, courts want both parents to have time with their child. Therefore, courts will look at whether the substance abuse is actually interfering with or otherwise a cause for concern regarding the parenting of the child.
Often, courts will impose conditions on parenting time rather than limiting it, including:
- Supervised visitation. If the parent cannot meet the child’s needs because of the addiction. supervised visitation may be ordered.
- Drug and alcohol testing. A parent may be required to take a drug or breathalyzer test like SoberLink before, during are after the substance abusing parent’s visitation with the child.
Importantly, if conditions on parenting time are imposed by the court, the parent with substance abuse issues can go back to the court after receiving treatment to ask for those restrictions to end or be loosened. Courts will often have such conditions end if the parent has completed a treatment program and has been drug-free and/or sober for some period of time. Regular drug/alcohol testing would confirm this.
If your spouse exhibits troubling behavior that may endanger your child, you should document those instances and consult an attorney. You want to be careful about interfering with the relationship between your spouse and your child because it may make you vulnerable to claims of parental alienation. A lawyer can help you address your concerns with the court.
Substance abuse is a horrible disease but addiction and marriage don’t mix without treatment. If you are seeking separation or divorce or want to understand how to protect yourself and your children during marriage, contact us to discuss your situation.
