Alimony and Addiction

Does addiction affect your duty to pay or your right to receive spousal support? The answer is “maybe”. In order to answer the question (and award or deny spousal support) a judge must consider many factors. He or she must consider not only Louisiana’s law concerning alimony and marital fault but also complex medical issues arising out of addiction to drugs or alcohol.

There are two types of alimony in Louisiana: interim and final. A spouse seeking interim support is not required to prove that he or she was free from fault in the break-up of the marriage. However, a spouse who asks for final support must not only prove that he or she needs it but also that his or her fault, if any, did not break up the marriage.

Historically, proof of habitual intemperance prevented a spouse from receiving final alimony. For decades, habitual intemperance meant the excessive use of alcohol. Frequent drunkenness does disrupt marital life. It can cause a spouse to neglect duties to the other spouse including duties of love and support - physical, emotional, and financial. Many courts considered alcoholism a choice rather than a disease and refused to award final alimony to spouses they deemed merely drunkards.

Courts remained sympathetic, however, if a spouse’s breach of marital duties resulted from an involuntary condition. Inevitably, for example, a spouse with ALS (Lou Gehrig’s disease) will not be able to discharge his or her marital duties. But courts would not refuse to award final alimony on that basis. The illness is not a voluntary condition.

In contrast, a spouse who intentionally engages in behavior that destroys a marriage should not be rewarded (nor the other spouse punished) with an award of final alimony.

Almost everyone knows someone whose son, daughter, husband, wife, boyfriend or girlfriend is addicted to drugs or alcohol. It is difficult to pick up a newspaper or read online news feeds without seeing articles on addiction to opioids such as heroin, fentanyl, and a laundry list of painkillers. Other drugs like methamphetamines, cocaine, synthetic marijuana, and amphetamines used to treat ADHD continue to be used and abused with similarly tragic effects.

The treatment of addictive behavior has grown into a big business. There are numerous treatment centers (in-patient and outpatient) and sober living homes in the greater Baton Rouge area. Physicians, psychologists, and sub-specialists can now be certified in the diagnosis and treatment of addiction. Their activities in those capacities are often regulated by the State.

Society’s perception of addiction is gradually changing. What was once morally reprehensible voluntary behavior has become, at least in some cases, a disease process. Certain people are believed to be pre-disposed to addiction due to brain chemistry. Such people, if they are exposed to drugs by prescription, become addicted involuntarily. Addiction easily leads to the type of behavior that destroys marriages. But if it is a disease, like ALS, the destructive behavior of addiction may be as involuntary as the paralysis of Lou Gehrig’s disease.

If addiction is a disease, should people suffering from addiction be denied final alimony? The answer to the question may depend upon expert testimony and Louisiana courts’ willingness to expand existing case law on “fault”.

A number of Louisiana courts have concluded that a mental illness that causes behavior that breaks up a marriage is not “fault” for alimony purposes. In the case Kaplan v. Kaplan, 453 So.2d 1218 (La. App. 2 ^nd Cir.), writ den., 458 So.2d 484 (1984) a wife provided evidence in the form of expert testimony by her psychiatrist that she was mentally ill and that her mental illness caused her disruptive behavior. The court awarded her final alimony. Citing a number of earlier decisions by other courts, it said that actions that would normally be construed as fault contributing to a marital break-up are excused when they are involuntarily induced by a preexisting mental illness.

Addiction may be similar to a mental illness. Like mental illness, addictive behavior does not produce a fever, a cough, a rash, or any of the other physical manifestations of disease that we are accustomed to seeing in someone who is sick. However, like mental illness, addiction produces visible physical signs of the condition – mania, anxiety, depression, lethargy, delusions, and hallucinations.

Addiction, like mental illness, may be precipitated by a circumstance beyond a person’s control. An addict may begin to take opioids after a physical injury. A person may develop a mental illness due to a traumatic life experience. An addict who experiences an almost irresistible craving for a drug due to a physical pre-disposition is, arguably, no more at fault than a young boy who has been the victim of a pedophile.

Whether addiction is a disease that results from a physical pre-disposition requires the testimony of an expert in addiction. That expert’s opinion must be grounded upon good – not junk – science. It must have a factual basis. It should be supported by peer reviewed articles and studies. Expert opinion testimony is costly. Its use in a claim for alimony by an addict must be weighed against the financial benefit that may ultimately be obtained.

If addiction is a disease that an unsuspecting person can catch from the legal use of prescribed medicine, there are nevertheless some addicts who should arguably not qualify for final alimony.

A spouse who decides to try a line of cocaine at a party one night and is hooked as a result may not be a spouse whose eventual addiction should be excused as a disease. Possession of cocaine is against the law. Its dangers of addiction are well known.

Likewise, a spouse who decides to try a friend’s Adderal prescription to help keep him awake during shift work may not be the kind of person who should be awarded final alimony if he later becomes addicted to amphetamines.

Many people have taken medications from family and friends when they thought it would help them in a particular situation. It is not a good idea but it does occasionally happen that a family member or friend will give another family member or friend in need a few Xanax or Valium or Vicodin or any number of potentially addictive drugs. If drug seeking and drug sharing practices are socially condoned, addictions that result may not be perceived to be as bad as those that begin on the street or at wild parties.

A person who knows of the other person’s addictive behavior before marriage may not be able to argue that it disqualifies the addict from receiving final alimony. A spouse who enables the other person’s addictive behavior by prescribing the drug of choice or obtaining and providing it in some other way should arguably not be able to raise the addiction as a bar to alimony.

If your spouse’s addictive behavior has destroyed your marriage, you should seek legal advice from a family law attorney. That lawyer can advise you on a course of action. That course may include helping your addict spouse obtain treatment. A recovered spouse is one who may not need financial support after divorce. Mr. Cosenza has extensive experience representing spouses whose marriages have been broken apart by addiction. He can suggest resources for you and your family. He can give you an idea whether you will be paying or receiving final spousal support if an addiction is an issue.