If I Get Divorced, Can My Spouse Take My Disability Benefits?

Some research studies suggest that divorce rates increase when either spouse incurs a disability. The studies also indicate that the extent to which a disability negatively affects a marriage can vary widely, depending on factors such as the severity of the disability, the age of the couple, their educational background, and the specific disabling condition.

If you have qualified for Social Security Disability Insurance (SSDI) your ex-spouse may be entitled to financial benefits based on your Social Security earnings record, even if your impairment occurs after the divorce.

Different from spousal support or alimony, these benefits are called “divorced spouse benefits.” Your ex-spouse can receive up to 50% of your monthly disability benefit (but there are family maximums that may affect the amount).

Your ex-spouse receiving divorced spouse benefits does not reduce the monthly benefit amount you receive. One kind of disability benefits, Supplemental Security Income (SSI), is a needs-based program, so an individual’s benefits may actually increase after a divorce, depending upon the division of property and alimony payments.

To collect benefits, you and your ex-spouse must meet certain requirements. You and your spouse must have been married for at least 10 years, your ex must be at least 62 years old, he or she cannot have remarried (unless they remarry after 60, or 50 if they have a disability), and they cannot be eligible for a higher benefit on their own record. Termination of an earlier marriage will not affect eligibility for this benefit.

Generally, Social Security benefits—both SSDI and SSI—are not considered marital property and therefore are not subject to division in a divorce.

These benefits are considered protected by law. However, if the funds are commingled with other marital funds in a joint account, in a divorce they may become subject to equitable division under Illinois state laws.

Equitable division means that while marital property is divided during a divorce, it’s not necessarily split 50/50, but rather in a way that the court deems fair and just.

Although divorced spouse benefits will not affect your benefit amount, a portion of your SSDI payments could be garnished if you are ordered to pay alimony or child support. SSI payments cannot be garnished for the purpose of alimony or child support. When calculating alimony or child support, SSDI payments are considered income, while SSI payments are not.

Without a doubt, dissolving a marriage causes emotional upheaval, but it also has significant financial implications.

If you have a disability and are considering seeking a divorce, you need to get educated about the potentially significant economic implications of splitting up.

Because individual specifics can vary dramatically, we encourage you to consult a local family law attorney.

And if you are unable to work due to a disabling impairment and are considering applying for disability benefits or have been turned down for the disability benefits you believe you have rightfully earned, you should consult with an experienced disability lawyer.

Call or email us at Nash Disability Law to arrange a free consultation about your situation. We are Chicago’s leading Social Security Disability law firm. You only pay your disability attorney when you win your case.

*Note: The information in this article should not be relied upon to take any legal action in a divorce action. Nash Disability Law does not practice divorce law; therefore, it is necessary and prudent to discuss your individual situation with a divorce attorney.