What happens if you divorce a disabled spouse

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Navigating a divorce is challenging enough on its own, but when Social Security Disability Insurance (SSDI) benefits are involved, things can get even more complex. From determining the impact of disability benefits on asset division to understanding the potential effects on spousal support payments, there’s a lot to consider. Read on to find out more about the intricacies of how SSDI can impact divorce proceedings and spousal benefits.

SSDI Benefits and Divorce

Social Security Disability Insurance pays benefits to people who aren’t able to work because of a serious medical condition that is expected to last at least one year or result in death. You are qualified to receive SSDI benefits if you’re insured under the program. This means that you worked long enough, and recently enough, and paid Social Security taxes on those earnings.

The monthly SSDI benefits you receive monthly are based on your working record. The amount you get will depend on how long you worked and your earnings over that time. If, on the other hand, you do not have enough Social Security credits to qualify for benefits on your working record, you may be eligible for spousal benefits. You can also qualify for spousal benefits if you are insured for a Social Security benefit based on your own work history, but your spousal benefit is higher. In general, you can only qualify for whichever benefit is higher — that is, you cannot qualify for a benefit based on your work history and your spouse’s work history simultaneously. 

Note that SSDI benefits are not dependent upon marital status. Therefore, a marriage or a divorce will not affect your eligibility for SSDI or affect your benefit amount. Additionally, you do not have to be disabled to be eligible for spousal benefits.

Here are the eligibility requirements for spousal benefits and divorced spousal benefits:

  • If you are married, you may qualify for spousal benefits if:
    • You have been married for at least one year.
    • You are 62 years old or older. Or, you are younger but caring for a child under 16 years old or a child with a disability who is under 19 years old.
    • Your spouse is eligible for retirement benefits
  • If you are divorced, you may be eligible for spousal benefits if:
    • You were married for at least 10 years.
    • You are 62 years old or older.
    • Your ex-spouse is eligible for retirement benefits (but must be actively collecting retirement benefits).
    • You are unmarried when you apply for benefits.

The maximum spousal benefit is 50% of your spouse’s or ex-spouse’s benefit at their full retirement age. Retiring early, though, reduces spousal benefits. Keep in mind that amounts vary and the calculation of benefits can be complicated. You can use the SSA’s (Social Security Administration) Spousal Benefit Calculator to calculate your benefit amount.

Impact of Divorce on Spousal Benefits

During a divorce, understanding the potential changes in income or eligibility is crucial. It’s essential to stay informed and seek guidance to navigate any adjustments smoothly.

Change in benefit amount

The spousal benefit and the divorced spousal benefit are calculated in the same manner. Your benefit amount is based on the Social Security retirement benefit of your eligible spouse. The SSA may reduce your spousal benefit if you apply before you reach your full retirement age. They will pay you your spousal benefit if your spousal benefit is higher than the retirement benefit you would receive on your own Social Security earnings. 

Impact on dependent benefits

Dependent children may continue to receive benefits even after a divorce, provided the other eligibility requirements are still met.

When you or your spouse qualify for Social Security benefits, your children may also qualify to receive benefits. A child may receive benefits if they are:

  • Unmarried
  • Under age 18 
  • Are 18–19 years old and a full-time student
  • Are 18 or older and became disabled before age 22

Remarriage and spousal benefits

If you receive benefits as a divorced spouse, your new marriage will affect your spousal benefits. If you remarry, you generally cannot collect benefits on your ex-spouse’s record unless your later marriage ends by death, divorce, or annulment.

Survivor benefits

The SSA also administers survivor benefits. If your ex-spouse dies, you may be eligible for survivor benefits. A surviving divorced spouse may receive benefits under certain circumstances:

  • You were married to the deceased former spouse for 10 years or more; or 
  • You are caring for a child under age 16 or who has a disability and the child is eligible for benefits on the record of your former spouse. The child must be your former spouse’s natural or legally adopted child.

If you remarry after you reach age 60 (or age 50, if you have a disability), the remarriage will not affect your eligibility for survivor benefits.

It’s important to understand the benefits you may be entitled to as a surviving spouse and a disabled surviving spouse. For more information, read our blog post about Social Security survivor’s benefits

Legal Considerations in Divorcing a Disabled Spouse

There are also certain legal factors that may affect your spousal benefits if you divorce an SSDI beneficiary. 

Understanding the applicable marriage laws

To receive spousal benefits, you must meet the SSA’s definition of a spouse. You will be considered a spouse if:

  • Under applicable state laws, you are validly married or you have the status of a husband or a wife with respect to the taking of intestate personal property; or
  • You entered into a ceremonial marriage that was invalid under applicable state law because of an impediment resulting from a prior marriage or its dissolution or a defect in the legal procedures in connection with the alleged marriage, as long as:
  • You married the worker in good faith, not knowing of any defect at the time of the marriage; and
  • You lived with the worker in the same household when they applied for benefits (unless you were divorced from the worker at the time).

Understanding the applicable laws governing divorce

The Social Security Administration will honor the laws of each state to determine if a divorce is valid. To prove that you are divorced, you will need to provide the SSA with a certified copy of the divorce decree, which you can obtain once your divorce is finalized. In California, the divorce decree can only be obtained from the local Superior Court in the county where the divorce took place.

Also, it must be noted that there is a waiting period for divorce in California. The law mandates a six-month waiting period from the filing for divorce and when the divorce is finalized. In addition, California is a “no-fault” divorce state. This means that a couple can divorce without having to prove that one spouse was at fault in the dissolution of the marriage. 

Marital property division

Under federal law, which preempts state law, an individual’s right to receive Social Security benefits is not transferable or assignable. This means that the SSDI benefit is not divided during a divorce. Social Security benefits are considered separate property that is not part of the divorce settlement.

Impact on child or spousal support

Social Security benefits, including spousal benefits and SSDI, are subject to garnishment. Garnishment is a method of collecting a debt by ordering the person who owes the debt to pay the money to the person they owe it to. Social Security benefits can be garnished to pay child or spousal support after a divorce.

The SSA will calculate how much money to garnish based on a garnishment order from a court. They, however, do not garnish retroactive benefits, only ongoing or future benefits.  However, state laws and consumer protections can limit the garnishment amount. In California, the California Consumer Privacy ACT (CCPA) limits garnishment to: 

  • 50% if the Social Security recipient is already supporting a spouse or child other than the spouse or child who is due child support (55% if the support is 12 or more weeks late).
  • 60% if the recipient is not supporting another spouse or child (65% if the support is 12 or more weeks late).

Note that the rules for Supplemental Security Income (SSI) benefits are different. SSI pays a monthly monetary benefit to elderly, blind, or disabled people who have limited assets or income. Therefore, SSI benefits are not subject to garnishment.  

If you are in this specific situation or would like to receive an assessment of your specific case, get in touch with us . We offer a free consultation by one of our experienced Social Security Disability attorneys at the LaPorte Law Firm.

FAQs

SSDI benefits are considered separate property. They are not divided in the event of a divorce. But your SSDI benefit can be garnished to pay the money you owe for child or spousal support. Generally, the garnishment is limited to no more than 60% of your SSDI benefit.
Spouses can receive up to 50% of the amount of your SSDI benefit if they claim benefits at their full retirement age or on the basis of caring for your child. This spousal benefit or divorced spouse benefit does not impact your SSDI benefit. It is an additional benefit to the spouse, not a reduction of your own benefit. If your spouse or your divorced spouse becomes entitled to the benefit, you will continue to receive your full SSDI benefit.

Your SSDI benefit based on your individual work history is not impacted by your marriage, divorce, or any marriage subsequent to your divorce.  If you receive divorced spouse benefits based on the work record of your ex-spouse and you remarry, your spousal benefit will stop.

If your spouse is deceased and you are entitled to survivor benefits, remarriage after you reach age 60 (age 50 if you have a disability) will not affect your eligibility for survivor benefits.

If you receive SSDI benefits, there are limits on your ability to work and continue to receive SSDI. After you become eligible for SSDI benefits, you may return to the workforce and work at any level and continue to receive benefits while working. This is called a  trial work period. During the trial work period, you can work for  nine months within a five-year window without losing benefits. The nine trial work period months need not be consecutive. The trial work period ends once you work nine trial work period months. If you do not continue to work, you will continue to be eligible for SSDI benefits. If you do continue to work at substantial gainful activity levels, you will no longer qualify for SSDI. In 2024, substantial gainful activity levels are defined by any work that exceeds $1,550.  

The rules are different for spousal benefits. You can receive spousal benefits and continue to work at the same time. But if you are younger than full retirement age and you earn more than certain amounts, your benefit will be reduced. In 2024, the SSA will deduct $1 from your benefits for each $2 you earn above $22,320. If you reach full retirement age in 2024, the SSA will deduct $1 from your benefits for each $3 you earn above $59,520 until the month you reach full retirement age. To learn more about any reduction that may be made, check out the SSA’s page on How Work Affects Your Benefits.  

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