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.
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.
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.
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.
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.
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.
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.
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.