Many spouses who are disabled or who are married to someone who is disabled have many questions about disability benefits, divorce, and disability benefits. Spouses may pose questions to their attorneys like “I am disabled and my husband wants a divorce. What do I do?” or “Can my ex wife get my Social Security Disability?” For the most part when it comes to SSDI payments, divorce does not have a major impact on the benefits you or your spouse receive; these benefits largely remain the same. However, you should know that if you receive SSDI benefits, these benefits may be garnished in cases to pay child support or alimony. Here is everything that you need to know about Social Security Disability and divorce.
How Social Security Disability Benefits Are Determined
Social Security Disability Insurance payments are based on your own work history. The amount of benefits you receive are based on your average lifetime earnings before your disability began. The amount of your benefits is based on only your work history and not your spouse’s.
If you are age 62 or older and married to a disabled person who receives benefits, you may be eligible to receive spouse’s benefits if your marriage was for 10 years or longer and you cannot receive a higher Social Security benefit off your own work record. You will generally continue to receive these benefits even if you divorce your disabled spouse. Getting a divorce does not cut the benefits in two. You each receive a portion of the benefits based on your ex’s record. Benefits your spouse receives based on your record do not decrease your retirement benefit.
How Will Social Security Disability and Divorce Affect My Benefits?
How your benefits will be impacted by divorce will depend on the type of benefits you are receiving and your individual situation. Because Supplemental Security Income is a needs-based program, getting divorced and moving out may actually cause your benefits to actually increase.
In the case of Social Security Disability Insurance, your benefits may stay the same, decrease, or be terminated.
Will My Ex Receive My Benefits?
If your ex received benefits while you were together, he or she is still entitled to receive these benefits unless one of the following situations apply:
Your Marriage Lasted Less Than 10 Years
Individuals who were married for at least 10 years to a worker who has paid into the Social Security system follow many of the same rules as those who are still married.
Your Ex Gets Remarried
If you are wondering can my ex wife get my Social Security disability, the answer also depends on whether your ex gets remarried. If your spouse has remarried since your divorce, she probably will not be able to receive benefits based on your record unless she also divorces her new spouse and is otherwise entitled to benefits on your record.
Your Ex Becomes Entitled to a Larger Payment Based on Their Own Work Record
If your ex reaches age 62 and eligible for retirement benefits or is otherwise entitled to a larger payment based on their own work record, he or she will not receive payments based on your record. The Social Security Administration will determine the ex-spousal benefits and retirement benefits and pay your spouse whichever amount is higher.
Can I Receive Disability Benefits From My Ex?
If your ex receives SSDI benefits and you meet the following criteria, you may be able to receive benefits based on your ex’s record:
- You were married for at least 10 years to your ex
- You are at least 62 years old
- You have not remarried someone else
- You are not entitled to a larger payment under your own record
What If I (Or They) Get Remarried?
If you are receiving benefits based on an ex’s record and they get remarried, you will still continue to receive benefits. However, if you get remarried, benefits will stop. They will only resume if your other marriage ends in divorce, death, or annulment.
Disability and Divorce Settlement
One of the most important considerations for a person divorcing a disabled spouse is how their divorce settlement will be affected by the disability status. In equitable distribution states, courts consider the health and medical needs of the spouses when dividing property as well as determining spousal support. Both the disabled spouse and non-disabled spouse must consider how the divorce will impact their financial situation to determine what relief to try to seek through the divorce process, including the effect the divorce might have on their health insurance.
Additionally, if disability benefits are deposited in a joint account, they may become marital property and be subject to division between both spouses, even if the benefits were only in one of the spouse’s names. This may happen when the funds are considered “commingled” where their origin cannot be easily traced. To avoid this possibility, it is better for the disabled individual to have their disability benefits directly deposited into an account only in their name where other joint funds are not stored.
Disability and Spousal Support
Another common question surrounding the issue of divorce and disability benefits is “Can I get alimony if I am on disability?” or “Can I get alimony if my husband is on disability?” The answer to both questions is “yes,” but it ultimately depends on the divorce case and the terms of your disability and divorce settlement whether spousal support will be awarded alongside disability benefits in a divorce. Spouses are usually encouraged to try to reach a fair agreement regarding the terms of their divorce, including agreements related to spousal support.
If the spouses do not agree on the terms of their divorce, the court makes these determinations. The court can order spousal support if either you or your spouse is disabled. To determine whether to award spousal support and in what amount, courts often consider such factors as:
- The age of the spouses
- The physical and mental health of the spouses
- The length of the marriage
- How property was divided
- The custodial arrangement of any children the spouses have in common
- The separate property of each spouse
- The education, skills, work histories, and earning capacity of each spouse
- The need of the spouse requesting spousal support and the ability of the other spouse to pay it
When calculating alimony payments, SSDI is counted as income while SSI is not.
Alimony & Child Support
Social Security Disability Insurance benefits may be garnished to pay court-ordered child support or alimony. However, Supplemental Security Income payments cannot. Because SSI is a needs-based program that is only available to very low wage earners or those without any other income, these limited funds are not taken to provide support for others. While VA disability benefits cannot be considered when dividing marital property, they may be garnished to pay support obligations if the veteran waived a portion of retirement pay in exchange for nontaxable disability benefits.
To garnish SSDI benefits, you will first need to obtain an income withholding order from a judge, which usually requires you to show that your spouse has not paid court-ordered support payments. This order is submitted to your local Social Security office, which can then take money directly out of the benefits before your ex receives them to pay the owed amount of support, subject to maximums by state and federal law.
If you are attempting to collect child support and your children are still minors, you can seek this assistance from your local child support enforcement office. If your children are not minors or you need assistance in garnishing spousal support from disability benefits, you may want to speak to a family law attorney about the process.
Can I Receive Benefits If My Ex Dies?
If you get divorced from your ex and then your ex dies, you may be able to receive benefits if you meet the following criteria:
- You were married to your ex for at least 10 years
- You are at least 60 years old or at least 50 years old and disabled
- You are currently unmarried or you married after age 60 or after age 50 if disabled
- You are not entitled to a larger benefit based on your own record
Benefits paid to you as a divorced spouse do not affect payments to the widow or widower of your ex or other former spouses. The benefits that you receive as a surviving divorced spouse will not usually affect the benefit amount that other survivors receive unless your qualification is based on the worker’s child being in your care.
If you claim survivor benefits at full retirement age or older, you may receive 100% of the amount. If you claim benefits after age 60, you will receive between 71% and 99% of the benefit amount. You can opt to apply for survivor benefits at age 60 while waiting to apply for your own benefit up to age 70 in order to receive delayed retirement credits based on your own record.
Caregiver and Survivor Benefits
If you are caring for a child of the deceased worker and the child is under age 16 or disabled, you may be eligible for survivor benefits at any age and regardless of your marital status. If the child is over age 22 and disabled, the child must have been disabled since before turning 22. You can qualify for 75% of your deceased ex’s benefit.
