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Substance use disorder refers to the use of illegal substances — such as heroin, cocaine, or methamphetamine — or the misuse of legal substances such as alcohol, nicotine, prescription medicines, or marijuana.1 Being wed to a partner with substance use disorder can place an undue burden on a marriage. It can complicate your feelings toward your partner, affect your communication, make you lose trust in your partner, cause you to feel alone and isolated, and/or create feelings of resentment. Navigating divorce when your spouse has substance use disorder can be very challenging. Consider the below-mentioned items prior to commencing the divorce process so you’re prepared for what’s to come.
How Substance Abuse Impacts the Divorce Process
Filing for Divorce
You may be curious if your partner having a substance abuse problem is listed as a “ground” for filing for divorce. California is a “no-fault” state, which means the party filing for divorce isn’t required to show any wrongdoing or fault of the other party. Currently, you can request a divorce based on “irreconcilable differences” or “permanent legal incapacity to make decisions.”
While your partner’s substance abuse may be the reason you want to file for divorce, you won’t need to show or prove their substance abuse to be able to get divorced. However, if your partner is excessively spending money to support their addiction, that may cause their portion of your community property to be reduced. This will be explored in the “How Substance Abuse Could Impact a Divorce Settlement” section below.
Child Custody
If you have children, having a spouse with substance use disorder can be particularly problematic. You may be scared to leave the children alone with your spouse or not comfortable relying on your partner to care for/make important decisions regarding your children.
In exploring how being married to an addict can affect child custody, it’s important to first differentiate the different types of child custody.
First, there is legal custody, which refers to a parent’s rights, responsibilities, and authority when making decisions regarding their child’s welfare. This generally entails decisions regarding education, health care, extracurricular activities, etc.
Second, there is physical custody, which refers to the schedule by which the parents will share time with the child.
Legal and Physical Custody Concerns
If you have joint legal custody of your children, this means you and your co-parent must agree on all major decisions relating to your children’s welfare. For example, if you want your child to go to a certain school, you and your co-parent would need to agree that your child can attend that school. If you have sole legal custody, this means you would be able to make these decisions by yourself. Using the same example, if you wanted your child to go to a certain school, you would have the ability to enroll them without having to wait for the other parent’s consent.If you have joint physical custody, you and the other parent would both care for your children for roughly the same amount of time. For example, your children may spend two days at your house, two days at the other parent’s house, and alternate weekends between both parents. If you have sole physical custody, your children would be primarily in your care, with potential visitation in some capacity with the other parent. This could be weekday dinner visits, weekend daytime visits, or most likely if your partner has substance abuse issues, supervised visits.
If you and your spouse don’t have a contentious divorce and are coming to child custody agreements by yourself, it’s important to consider how your spouse’s substance abuse affects them personally. The substance abuse may impact their decision-making abilities or their response time to your messages. If you feel your partner’s substance abuse affects their ability to make logical, informed decisions regarding your children’s welfare, or if they go days without being in contact with you, it may be best to consider sole legal custody.
It’s also important to consider how comfortable you feel with your spouse visiting your children, and how comfortable your children feel visiting with the other parent. Is your spouse living with family and will have supervision during the entire visit? Do you need to pay for a professional supervisor to ensure the children are safe during their visits? These are things to seriously consider when trying to work out a visitation schedule.
If you and your spouse have a contentious divorce and do not agree on custody of your children, you’ll need to litigate the issue of child custody. This means the judge will make the decision regarding legal and physical custody. The judge will prioritize what is in the best interest of your child/children. You’ll have the opportunity to provide testimony and proof of why your requests are in the children’s best interest. You can also have other people who are close to you and your spouse testify about what they have witnessed relating to your partner’s substance abuse issues. The court will consider any potential harm that substance abuse may cause when determining the custody arrangements and whether supervised visitation is necessary or not.
Supervised Visitation
With supervised visits, you could either agree to use a non-professional supervisor (e.g., a family member or a close friend) or a professional supervisor. Sometimes children are more comfortable with non-professional supervisors, as they are familiar with that person and their presence at visits would not be alarming or intrusive. In more serious cases, or if you and your partner cannot agree on a non-professional supervisor, you can employ the services of a professional supervisor. Professional supervisors have protocols and special training to deal with cases that may involve safety issues. If you’re considering using a professional supervisor for visitation, you can visit the San Diego Superior Court website for a list of professional providers of supervised visitation.
Drug/Alcohol Monitoring and Testing
You could also consider implementing alcohol/drug testing as a requirement for visitation. If your spouse has alcohol abuse problems, there are at-home alcohol monitoring devices they can use where the results can be sent directly to you in real time. You can select to have your spouse utilize the alcohol monitoring system prior to and during any visit to ensure they’re not under the influence while with the children. If your partner has substance abuse issues, you can suggest they go to a drug-testify facility for random drug tests each month to ensure they are not under the influence during visits with the children. Ultimately, it’s most important to ensure the children are safe while in the care of your spouse.
Custody Evaluation
The court may also order a specialized child custody evaluation to be completed, which is where a professional performs an in-depth evaluation of you, your spouse, and your children to determine what custody orders are in the best interest of the children. This could entail a psychological evaluation or a substance use evaluation. Once the evaluation is complete, a report will be given to the court for the judge to review and make the final custody and visitation orders. 
Again, the children’s safety is the most important consideration when it comes to child custody and visitation. It’s important you consult with an experienced family law attorney and provide the specific facts of your case to ensure you find the best course of action.
How Substance Abuse Could Impact a Divorce Settlement
Division of Assets and Debts
California is a community property state, which means you and your spouse are considered joint owners of all assets and debts acquired during your marriage (with some exceptions, of course). As a simple example, if you and your partner open a joint bank account when you get married and there is $100,000 in the account when you get divorced, absent any exceptions both you and your spouse would be awarded $50,000, no matter who contributed their earnings to the account during marriage.Excessive use of marital funds to support an addiction could result in that party’s share of property distribution being reduced. Using the example above, if your spouse used $20,000 of the funds from the joint account to purchase drugs/alcohol or fund their addiction in any way, you may be entitled to a greater share of the funds in the joint account due to your partner spending the money to the detriment of the community.
The above are very simplified examples, and it’s always best to consult an attorney with your exact finances and situation to get a better understanding of how substance abuse could impact the division of your assets and debts.
Spousal Support
Spousal support is a court-ordered payment from one spouse or domestic partner to help cover the other’s monthly expenses. In California, judges are required to consider the factors set forth in Family Code section 4320 when making spousal support orders. If you’ve been affected by your partner’s substance abuse during your marriage, the court may consider those facts when making a spousal support determination. Substance abuse may also impact a party’s ability to work or sustain employment which may also impact support orders.Finalizing a Settlement
Often, people with substance use disorder can be irrational, irritable, angry, and/or overall uncooperative. Your partner may not want to get a divorce or be upset that you have decided to end the marriage. Depending on your partner’s involvement with the divorce process and proceedings, they may try to prolong the process and be unnecessarily difficult. It’s important to have an attorney who is familiar with dealing with these types of issues to move the process along in the most efficient way possible.Substance Abuse and Domestic Violence
Living with an addicted spouse can be incredibly difficult, especially if your spouse becomes angry or aggressive while they are under the influence. Under the Domestic Violence Prevention Act, abuse is defined as any of the following: (1) intentionally or recklessly causing or attempting to cause bodily injury; (2) sexual assault; (3) placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another; and/or (4) engaging in any behavior that has been or could be illegal such as molesting, attacking, striking, stalking, threatening, battering, harassing, destroying personal property, contacting the other by mail, telephone, or otherwise, disturbing the peace of the other party. 
While it may seem better to keep the peace and not aggravate your partner, or you feel you are used to handling your partner when they are under the influence, please remember how important your safety is. You should seek help immediately if your partner is harmful to you or your children. If you are in an unsafe situation, speak with an experienced family law attorney immediately about seeking a Domestic Violence Restraining Order.
Find Peace from Substance Abuse Through Divorce
Addiction in marriage is not easy and can leave you feeling alone, frustrated, angry, or sad. A study done by Recovery Centers of America found that nearly 35% of divorce participants consider substance abuse to be the single most significant factor in choosing to divorce their partner.
While it may seem easier said than done, divorce may be the only way you will be able to find peace with your life. Remember that you are not alone, and there are plenty of people out there who are willing and able to help you find a better life for yourself and your children. If you feel like you may be ready to discuss divorcing your partner, please contact Cage & Miles, LLP to schedule your consultation today.
