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Disability Payments and Alimony
Jan L. Warner & Jan Collins

Question: I am in the process of getting divorced, an ordeal that has lasted for more than two years because my wife is trying to take everything I have, including my disability income. Fortunately, my employer paid for short-term and long-term disability payments for me. But when I began drawing Social Security Disability, my disability payments were reduced. I have a small 401 (k) and a small IRA. She has her pension. We had a house that was sold. When I became disabled just over three years ago, she stayed with me for a while and then left me alone.

We were married for six years and have no children. I am 43, and she is 37. She works, and her salary and bonuses are more than I receive. She is not asking for alimony, but wants an equal share of my disability payments. Is she legally entitled to one-half of my income from disability? She hired an economist to put a big value on my disability payments that stop when I am 65. I would appreciate any information that you could give me about this.

Answer: While the way in which courts treat disability payments may vary from state to state, the more rational approach, we believe, is to treat disability payments as income, not marital property that is subject to being divided in a matrimonial action. If you think about it, the monthly payments you are receiving are nothing more than a replacement of only part of the income you would be earning now and in the future had you been able to continue working. Just as Social Security and Social Security Disability payments cannot be divided, we donít think that disability income payments should be subject to equitable distribution or community property claims. If disability income were subject to being divided, the award would effectively be one of alimony. And since your wife didnít ask for it and earns more than you, yours does not appear to be an alimony case Ė unless she might be required to pay it to you.

Question: I have been separated for just over a year, and my wife is now bringing proceedings to dissolve our marriage. She thinks that because she has multiple sclerosis and wants to stop working, I will be responsible for alimony to supplement her income and future disability. I donít think this is fair or justified because we were married for just two years when we separated. She is not getting disability yet and will be working for a good while, according to the doctors. We have no children. I would appreciate any advice you can give me about this.

Answer: Alimony is determined by applying the facts of each situation to a number of legally mandated factors that include, among other things, the ability of each party to earn, the length of the marriage, and the health of each spouse.

While there is no way for us to predict what a judge may or may not do, suffice it to say that if your wife has MS and is still working, the judge could, at his or her discretion, decide to reserve the question of alimony until a later date, thus postponing the decision until the extent of your wifeís illness is known. If a final decree of divorce is issued without reserving support issues, those issues cannot be brought up again in the future. But if the question is reserved, you could be looking over your shoulder for a long time into the future. While the length of your marriage may be a mitigating factor, the risk for alimony is out there.



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FS-Becareful of Bargaining Away Alimony As Child Support
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FS-Lawyer Tells Me to Lie & Pension Double Dipped
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FS-On and Off Again Reconciles Can Create Agreement Disasters
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FS-The Dangers of Family Loans
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FS-Transference of Affection & 10 Tips of Divorce
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