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Divorce and HIV and Disability
Apr 14, 2014

This is not directly a workplace question but related to it. I have bee positive for eight years. My husband (same-sex marriage in MA, 30 months) is negative. I am not on meds: the possibility exits that I might be an "LTNP" or "Viremic Controller" -- but that may change at any time. I am not on any ARVs at present. But I am suffering, also, from clinical depression (DSM-V or DSM-IV-TR definitions) because of the wretched marriage. My questions: (1) does having an HIV-positive status "confer" as it were a status of precarious health and more importantly disability; and (2) does current clinical depression (and a documented history of depression, mostly unrelated to HIV but some of it because of the poz status) also constitute or contribute to a disability status? I ask this not for Social Security and so on: it has to do with sad divorce proceedings and employmet and income "attributed." An odd series of questions I know: but I would be gratful for some answers, clarifications. Thanks!

Response from Mr. Chambers

Disability is really a generic word whose meaning changes based on the context in which it is used. For example, being HIV+ is considered a disability or being disabled with regard to the Americans with Disabilities Act (ADA). Conversely, most private disability income plans and Social Security Disability look more closely at the lack of functional ability to determine whether someone is disabled enough to qualify for benefits.

Based on the context of your question, it sounds like you want to know whether your status as an HIV+ person with depression can be used as a reason or grounds for divorce. That of course depends on the laws in the state where you live and is really a legal question. You should discuss that with a divorce attorney in your state.

Disability benefits programs will consider depression to be disabling provided there are symptoms sufficiently severe and frequent to interfere substantially with your ability to work.

Private disability plans tend to limit disability benefits to only two years if it's due to a mental or nervous disorder not caused by a physical condition. Social Security covers it the same as any other disability.

I understand you aren't asking about Social Security, but I'm not sure I understood your frame of reference for disability. When applying for employment a prospective employer can only ask if you are able to do the job. Only after a job offer has been made can they require a pre-employment physical and as long as your condition doesn't interfere with your ability to work, they must go ahead and hire you.

I'm also not clear on what you meant by "income attributed." If you are applying for a needs based benefit such as Medicaid or SSI, then they will count the spouse's income along with yours to see if you are financially eligible. They "deem" your spouses income to be yours as well.

If it's for a divorce, contact a divorce attorney in your state. If it's something else, let me know and I'll try to give you a better answer.

Jacques



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