How Will a Divorce Affect My Disability Payments?

Getting divorced might change the amount of your disability benefits, depending on whether you or your spouse receive SSDI or SSI.

By , J.D. · University of Baltimore School of Law
Updated by Diana Chaikin, Attorney · Seattle University School of Law

Going through a divorce can be a stressful and frustrating time, especially if one or both spouses are receiving Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI). Disabled spouses don't always have the ability to support themselves after a marriage is dissolved, and Social Security can use your marital status to determine whether you qualify for benefits and how much the benefit amount will be.

What Happens If You Divorce a Disabled Spouse?

If you're considering a divorce from a disabled spouse or you yourself are on disability, you likely want to avoid shaking up your finances too much. Some factors to consider include:

  • whether you, your spouse, or both of you are collecting disability benefits
  • what type of disability benefit you or your spouse are receiving
  • whether you're paying alimony to your former spouse, and
  • how your state divides property in a divorce.

Social Security administers two types of disability benefits, SSDI and SSI. SSDI is an insurance program based on how many work credits you've earned, while SSI is a needs-based program for low-income disabled people. People receiving SSI are more likely to be affected by divorce because the program has certain income limits that take your spouses' earnings into account.

Can You Get Disability Benefits From Your Spouse?

The SSDI program can pay dependents benefits to spouses of disabled workers. If you're receiving SSDI because your spouse was disabled, you can still receive these benefits even after you've divorced. However, your payment might stop if:

  • you were married to your ex-spouse for less than ten years
  • you're younger than 62 years old
  • you remarry, or
  • you're entitled to a larger benefit under your own work history.

Your spouse is also subject to the same criteria if they're getting benefits based on your eligibility for SSDI. So if you're disabled and want a divorce, keep in mind that your spouse can continue to receive benefits on your record (unless one of the above situations apply).

Just because a spouse can draw SSDI benefits based on their ex-spouse's work record doesn't mean that the disabled spouse will see their own individual monthly benefit reduced. But in very limited circumstances, a divorced spouse's benefit might count towards the disabled spouse's family maximum benefits—Social Security's cap on the total amount of dependents' benefits the agency will pay on one person's work record.

Can You Receive Disability Benefits and Alimony at the Same Time?

The Social Security Act (42 U.S.C. Ch. 7) doesn't prevent disabled people from receiving both SSDI or SSI and alimony at the same time. But depending on whether you're getting SSDI or SSI benefits, you might find that the amount of your benefit decreases after the divorce.

Because SSDI is awarded based on your individual work history, the amount of your benefit won't be affected by any alimony payments. But SSI benefits aren't based on your work history. Instead, eligibility for the program depends on your total combined or individual income. (In 2023, the monthly income limits for SSI are $914 for one person and $1,371 for a couple, though not all income counts toward these limits.)

So if you're on SSI, the amount you receive might increase after your divorce if your spouse was earning more than you or contributing more to your living expenses. On the flip side, if you start to get spousal support, your SSI benefit might decrease because Social Security counts alimony payments towards your income limit.

Will Divorce End Your Mother's or Father's Benefit?

Getting divorced doesn't affect "mother's or father's benefits" because they don't depend on whether you're married. You can get these benefits after a divorce if:

  • you care for the child (under 17) of an ex-spouse who qualifies for Social Security benefits, or
  • you care for the child (over 22 but disabled) of an ex-spouse who qualifies for Social Security benefits.

These benefits continue as long as you take care of a child who meets one of the qualifications above. (Read more about mothers' or father's benefits.)

Can Social Security Disability Payments Be Garnished to Pay a Judgment?

Yes, disability payments can be subject to garnishment, but only SSDI benefits. Section 459 of the Social Security Act allows SSDI to be garnished following a judgment for court-ordered alimony payments to satisfy your spousal support obligation.

SSI benefits can't be garnished at all. If you're receiving concurrent benefits (SSDI and SSI at the same time), only your SSDI amount will be garnished.

What Percentage of SSDI Benefits Can Divorced Spouses Get?

Up to 60% of your SSDI benefits can be garnished to support an ex-spouse, depending on whether you're supporting a child in addition to paying court-ordered alimony. If you're behind 12 weeks or more on your support payments, another 5% can be garnished, for a maximum of 65%.

How Are SSDI Garnishments Enforced?

The agency that handles court-ordered disbursement of alimony payments varies by state, but it's typically called the Office of Child Support Services (or a similar name).

Once the office is served an order for garnishment or other notice—usually by the spouse who's owed alimony—the office will send a copy of the documents, within 15 days, to the spouse who needs to pay. Within 30 days after the order for garnishment was served, the agency will then withhold any available funds needed to comply with the order.

Are Disability Benefits Part of a Property Division?

The laws governing the division of property when a marriage dissolves vary from state to state. How property is divided during a divorce depends on whether the state follows the principle of "community property" (each spouse gets a 50/50 share) or "equitable division" (property is divided fairly, but not necessarily equally).

When Are Disability Benefits Considered Marital Assets?

Most state courts have interpreted the Social Security Act to mean that disability benefits aren't marital assets. This means that if one spouse establishes a bank account that contains only disability benefit proceeds, such as the lump-sum back pay for an SSDI claim, the funds would be excluded from any court-ordered property division.

However, in community property states, if the back pay was deposited into a family account, or "commingled" (mixed with other sources of money) and used for communal purposes, the funds would most likely be considered marital property and would be split equally.

Some states that use equitable division to divide marital property will consider disability payments or lump-sum awards when determining the fair distribution of assets. For instance, if you received a $20,000 disability back pay award that you held in a separate account—even though the court can't split this with your spouse—a judge might take the amount into consideration when deciding how to fairly distribute the marital assets.

But other equitable division states don't consider disability back pay at all when dividing property.

How Does the Division of Property Affect the Amount of Disability Benefits?

Your SSDI payments won't be affected by how much property you have. But your SSI payments might increase or decrease depending on how your assets are divided in the divorce. As with the income threshold, SSI takes your marital status into consideration when determining whether you meet the low resource (asset) eligibility requirements for the program.

In 2023, individuals needed to have $2,000 or less in assets to qualify for SSI, while the limit for couples is $3,000. However, not all property counts towards the SSI asset limit, so you may want to take that into consideration when deciding who gets what.

Additional Considerations for Divorcing Disabled Spouses

If you or your spouse have children who receive benefits based on one parent's SSDI earnings record, your divorce may have an impact on your child's benefit amount. (For more information, see our article on what happens to family members' benefits after a divorce or custody change.) And if you haven't already, consider contacting a family law attorney who has experience with SSDI and SSI.

Updated September 5, 2023

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