A Divorced Spouse's Disability Pension Rights

Depending on where you live, you may have no right to your spouse's disability pension.

If you've spent any amount of time researching your state's divorce laws on the Internet, you've probably figured out that you're generally entitled to at least half of any pension benefits your spouse earned during your marriage. This general rule, however, applies to retirement pensions. Whether you have any rights to your spouse's disability pension depends largely on where you live.

Property Division

A minority of states treat a disability pension as marital property -- and therefore divisible in the same way as a retirement pension -- if your spouse earned the right to receive that disability pension during marriage. Most states, however, treat a disability pension as marital only to extent that the payments represent lost income that should have been received during the marriage. Payments that are supposed to compensate the disabled spouse for lost income after the end of marriage are treated in these jurisdictions as that spouse's separate property. If you live in North Carolina, for example, a court will not divide your spouse's disability pension. You may, however, recover a portion of his back pay.

Child Support

Even in states that give you little or no right to your spouse's disability pension, benefits that he receives are relevant to the issue of child support. His disability pension benefits are all or part of his income. Due to federal mandate, all states now have guidelines-based child support calculation systems that figure child support based on the income of both parties. Disability benefits are income for child support purposes, and, thus, you may receive an indirect benefit due to the inclusion of his disability payments in his income in a child support calculation.

Alimony

Although alimony law varies from state to state, as a general rule the amount of alimony a court awards is based on the dependent spouse's standard of living during the marriage, her need for support from the supporting spouse to meet those needs and the supporting spouse's ability to pay. Just as in child support, your ex's disability pension benefits constitute income that can be considered in deciding how much alimony or spousal support to award. It can increase an award to you, or it can reduce his dependency if he is pursuing a spousal support claim against you.

Social Security Disability

The vast majority of states do not classify Social Security benefits, which would include Social Security disability, as marital property. These benefits would be relevant to child support and alimony in the same way as a private disability pension from an employer, though. Furthermore, your minor children may be able to draw Social Security disability benefits even if they aren't disabled simply because one of their parents is.

References

• Lawyers: Property Division in Divorce: Disability Benefits
• Parasol Financial; Disability Insurance Benefits and the Division of Property After Divorce; Tom Carolan; February 25, 2010
• Woman's Divorce: Treatment of Disability Pay in Military Divorce
• Divorce Support: Classification of Social Security as Marital Property