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Does My Divorce Affect My Disability Settlement?

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Does My Divorce Affect My Disability Settlement?

Going through a divorce can be traumatic and confusing; if you also receive a monthly Social Security disability payment, it makes it all the more complicated. You may be wondering about a whole range of topics—from how your monthly payment could change to whether disability settlements are taken into account when determining joint assets.

The effect of your divorce on your disability payments will depend on many factors, including what state you lived in at the time of divorce, what kind of disability payment you are receiving, and how your divorce affects your overall income. And while each individual divorce settlement is different, the following can help answer some of your basic questions.

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At Morgan & Morgan, we are well-versed in Social Security disability benefits laws and how they can affect your life. State laws regarding divorce and disability benefits can be complex. Contact us if you have questions or need legal representation regarding your disability benefits.

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  • Do Disability Settlements Get Split During a Divorce?

    Not usually—but it varies by state. All states agree that marital assets (property acquired by both parties during the marriage) are subject to being shared in divorce settlements. The question is whether DI settlements qualify as marital assets.

    The Social Security Act states that disability payments are not subject to “levy or attachment.” The majority of state courts interpret this to mean that Social Security Disability Insurance (SSDI) benefits are not considered marital assets; however, some states with equitable division laws interpret things differently. 

    These states may consider lump-sum disability settlements to be marital assets if they were part of some sort of communal property, such as a joint bank account. Other states prohibit splitting disability settlements but will allow them to be considered when determining the total net worth of assets. And some equitable division states prohibit splitting or considering disability settlements entirely.

  • Will My Divorce Affect the Amount of My Disability Benefit Payments?

    This depends on whether your disability payments are from Social Security Income (SSI) or Social Security Disability Insurance (SSDI):

    • SSI disability benefits are needs-based and are calculated according to the financial resources you have available. If you either lose or gain net income after your divorce, this will be taken into consideration when determining your SSI benefits.
    • SSDI benefits are calculated based on your work history, so your divorce should not affect the amount of SSDI benefits you receive—unless you owe court-ordered alimony or child support, in which case your SSDI benefits could be garnished.
  • Are Disability Settlements Used to Calculate Alimony Payments?

    As a general rule, SSDI benefits are considered income and are taken into account when determining alimony. Need-based SSI payments are not.

  • If I Was Receiving a Spouse’s Social Security Disability Benefit, Will I Still Receive It After My Divorce?

    If you are 62 years old or over and were receiving a spouse’s benefits while married, you should continue to receive it after your divorce, except under the following conditions: 

    • You were married for 10 years or less
    • You get remarried
    • You become entitled to greater Social Security benefits with your own work record
  • If I Qualified for a Spouse’s Social Security Benefits While Married But Was Not Receiving It, Can I Still Receive It After I Divorce?

    You could be eligible to collect dependent Social Security benefits based on your ex-spouse’s work record if all of the following criteria are met:

    • You were married to your former spouse for at least 10 years
    • You are at least 62 years of age
    • You are unmarried
    • You are not entitled to a larger benefit using your own Social Security record

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Last updated on May 03, 2023

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