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How Will A Disability Affect My Divorce


Divorce can be one of the most difficult things a person can face during their lifetime. Typically, in a South Carolina divorce case, the Court will decide all issues of property and debt division, child custody and visitation, child support, alimony, and attorney’s fees, in addition to the issue of divorce itself. However, when one spouse is disabled, it can make things even more complex.  

Typically, when one spouse claims to be disabled and unable to support themself, the Court will look to see if the person claiming disability has been adjudicated disabled by the Social Security Administration (SSA). If the person has never been determined to be disabled by the SSA, then it may be more difficult for them to convince the family court judge that they are not capable of working. Here are a few areas that can be affected by whether one can work:

  • Alimony
  • Child Support
  • Property Division

What Are the Guidelines

It is important to distinguish Supplemental Security Income (SSI) from Social Security Disability Insurance (SSDI). The rules vary depending on the type of income the disabled spouse receives from the SSA. SSI is a needs-based benefit, while SSDI is based on the amount of work and money someone has already paid into the system. The SSI benefit that a person can receive is based on the number of available resources, including a spouse’s income. SSDI benefits may be garnished to pay for alimony or child support awards. SSI benefits cannot be garnished. SSDI benefits count as income in alimony or child support calculations. SSI benefits do not count as income. 

If a disabled spouse receives SSI and is awarded alimony, the alimony must be reported to the SSA as unearned income.  The amount of SSI benefits a person is receiving will be reduced by the amount of the alimony payment. If the alimony payment is more than the SSI benefit, the person will no longer be eligible for SSI. In addition, disabled spouse will lose their Medicaid benefits if they are no longer eligible for SSI. A skilled attorney can assist a client in navigating through this to ensure that no benefits are lost during the divorce process. 

Will I have to Pay Child Support?

A disabled spouse usually will not be required to pay child support if their only source of income is from SSI. However, if they receive SSDI, the amount they are receiving can be used as income in child support calculations, and child support will likely be ordered. Children of the disabled parent who receives SSDI may be eligible to receive a derivative benefit from the SSA. This benefit, in many cases, will cover the disabled spouse’s child support obligation if they are the non-custodial parent. If the custodial parent is not receiving this money or child support from the non-custodial disabled parent, they should contact the SSA to inquire about it. 

A disabled spouse can be awarded custody or visitation with their child or children if the Court determines it is in the child’s best interest. The courts will closely examine the nature of the disability and how it affects your ability to parent the child. The other party may raise safety concerns. So long as you can keep your child safe and care for their basic needs, the disability alone may not affect the outcome of the custody or visitation decision. However, it is one factor that could be considered. 

If the Court determines that one spouse is disabled, the Court could divide property and debts differently than if both parties were capable of working. One of the factors that the Court will look at when deciding how to divide the debts and property is each spouse’s income and earning potential.  If the disabled spouse cannot earn more than what they are receiving in SSI or SSDI, then the disabled spouse may get a more significant portion of the marital estate. This does not mean that they will get all the marital estate.  

What Happens After the Divorce

After your divorce is finalized, you may be able to collect dependent benefits from your ex-spouse’s Social Security benefit if they qualify for SSDI benefits or retirement benefits. You will be eligible if you were married to your ex-spouse for at least ten years, you are at least 62 years old, you are not married, and you are not entitled to a more significant benefit under your own Social Security record. This will not affect the amount that your ex-spouse receives. Divorce can mean large changes to the parties’ finances and lifestyles. Knowing what type of disability benefits you or your spouse receive will help you make informed decisions during the divorce process. 

Experienced Family Lawyers

Our experienced family lawyers at Collins Family & Elder Law Group have helped many clients navigate divorce when one spouse is disabled. We’re confident we can help you and your family find peace and stability. Call us today for a case consultation and make sure your rights are protected. 

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