Question: During our marriage, my husband earned more than $150,000 per year, and we acquired nearly $750,000 in assets. We had been separated for four months and were well into our divorce proceedings when he suffered a stroke.

The judge put our case on hold for nearly seven months while my husband recuperated and went through rehabilitation. Due to residual damage, his doctors say that he will not be able to work again. His company furnished him disability insurance of $7,500 per month for life, and he had a separate policy that pays $2,000 monthly. We have one child, now 14, who needs support as do I since I did not work outside the home during our entire 18-year relationship. Can these disability payments be divided like property since we paid the premiums during the marriage? If my husband dies, is there any way these payments will continue for me and our son?

Answer: The courts in the majority of states have determined that even though premiums may be paid during the marriage, disability payments are considered to be a replacement for future wages and earning capacity. As such, these payments are treated like income, not divisible marital property. Therefore, the support you are seeking from your husband will be paid from these payments.

Disability payments do not continue after the death of the disabled person; however, if your husband has life insurance with a waiver of premium rider, your lawyer should try to negotiate for you to become the owner of one or more of these policies in order to secure your support award. If he does not have life insurance, you may want to try to negotiate a provision that will bind his estate to make payments from his remaining assets should he die while there is an outstanding obligation to make support payments.

One question you did not ask, but which deserves comment is the taxability of the disability payments. Benefits received from disability policies furnished by an employer will be taxable income to your husband, while those received from an individual policy are not taxable. This means that of the $9,500 per month your husband is receiving, he will be required to pay income taxes on $7,500. The income tax ramifications of disability payments and how you and your husband can creatively reduce income taxes to achieve maximum spendable benefits for you and him is essential.

And one more: Your husband’s disability will probably allow him to qualify for Social Security Disability. If so, you and your son will also be entitled to benefits; however, your husband’s disability policies probably provide that the amount paid to him will be offset by Social Security disability payments.

To be disabled under Social Security rules, your husband must have a physical or mental impairment so severe that he cannot work at his regular job, or at any other job for which he might qualify with minimal training. In addition, his disability must be either 1) long-term -- meaning it has already kept him from working for at least 12 months, or is expected to, or 2) terminal. Although the medical requirements are strict, they do not mean that a person must be unable to function to collect them. In our view, Social Security Disability is well-worth looking into.