Divorce laws in the United States might vary from state to state. Each state determines the best processes for awarding alimony, or child support, and the division of assets. Sometimes the decision varies from case to case and based on the individual situation.
When it comes to a disability claim, there are several aspects to be looked at in case of a divorce.
Various factors are to be considered when claiming disability in divorce, which include:
1. Are you yourself the claimant or is your spouse the claimant?
2. Are you the supported or the supporter?
3. Is the disability claim in the form of Supplemental Security Income disability benefit (SSI)?
4. Or is the disability claim in the form of Social Security Disability Insurance based on work history (SSDI)?
5. Have you been married for more than ten years or less?
6. Are you sixty years or over?
7. Are you between fifty to sixty years and disabled?
8. Are you capable of supporting yourself?
9. Are you remarried?
10. Was the disability claim part of merged marital assets or was it separate?
There are three possible scenarios that need to be considered when claiming disability in divorce:
The one being supported is the claimant: In the case where you are receiving the disability claim be it SSI or SSDI and your ex-spouse will be supporting you then there are a couple of things that need to be considered:
-You can claim a higher amount from the agency owing to your changed marital status and the possibility of needing extra support.
-The court could consider your SSI payments as unearned income when calculating the alimony and award you a lower amount.
-Your SSDI payments do not get affected by or have any effect on the divorce settlement.
The one being supported is the spouse of the claimant: If your ex-spouse is on disability there here are a few points that come into play:
-If the amount claimed during the marriage was deposited in a joint account as part of marital assets then you can be awarded fifty percent or a fair share depending on the discretion of the court.
-If you have been married for more than ten years and are sixty years or over you can claim a share in the disability.
-If you have been married for over ten years, between the age of fifty to sixty, and disabled, you can claim a share.
-If you were married for at least ten years before your divorce and your ex-spouse dies, you can still continue to claim SSDI.
-You have been married, under the age of sixty two, not disabled and not remarried, you can claim a share.
The supporter is the claimant: If you are the one receiving disability and you need to pay alimony and/or child support to your ex-spouse in the case of a divorce, here is what you need to know:
-If your claim amount was deposited into a joint account it could be considered a marital asset and a portion could be awarded to your spouse.
-If you, however, have a separate account in just your name for the amount received through SSDI then that money remains solely with you.
-SSI payments are not considered as income when calculating alimony.
-SSDI payments, on the other hand, are considered income and could be a deciding factor in the amount paid for alimony.
-If you fail to meet the spousal support obligation your SSDI payments can be garnished for the same.
Maya Shulman, Esq.
Shulman Family Law Group