What Happens When You Divorce Someone on Disability?

Divorce can be an emotionally and legally complex process regardless of your specific circumstances. But, when one spouse is on disability, the situation may involve additional challenges for both parties. Understanding how disability benefits interact with divorce, as well as how assets and alimony are determined, can help you navigate the process more effectively. Here’s what you need to know if you are on disability and are going through divorce, or if you divorce someone on disability.

Types of Disability Benefits

It’s important to first distinguish between the types of disability benefits your spouse may be receiving. In the U.S., the two main types of disability benefits are:

• Social Security Disability Insurance (SSDI): This is for individuals who have worked and paid into the Social Security system but are now unable to work due to a disability.
• Supplemental Security Income (SSI): This is a need-based program for disabled individuals with limited income and assets.

How these benefits are treated during a divorce depends on the type of benefit your spouse receives.

Impacts of Divorce on SSDI and SSI

Divorce generally does not affect SSDI or SSI benefits directly, but it can indirectly influence how much your spouse receives from those disability benefits and/or whether they remain eligible for those benefits or not.

• SSDI Benefits: Since SSDI is based on your spouse’s work history and not on need, divorce will not change the amount of SSDI payments they receive. However, if your spouse was receiving SSDI benefits based on your work history (such as spousal benefits from your employer), divorce may reduce or eliminate those payments.
• SSI Benefits: SSI is means-tested, meaning it’s based on financial need. When you divorce, your spouse’s income and assets may be reassessed. If they no longer meet the financial thresholds due to a loss of shared marital resources, their SSI benefits could increase. Conversely, a large divorce settlement or alimony payments could reduce or terminate their eligibility for SSI.

Division of Marital Property

The division of property in divorce is typically governed by state law. States follow either equitable distribution or community property rules.

• Equitable Distribution States: Courts will divide assets and debts in a manner that is fair but not necessarily equal. Factors such as the length of the marriage, each spouse’s current and future earning capacity, and health can be considered. A spouse on disability may argue that their condition requires them to receive a greater share of the marital assets to maintain financial stability. Illinois is an equitable distribution state.
• Community Property States: Here, all assets and debts acquired during the marriage are split 50/50, regardless of a spouse’s disability status.

It is important to note, however, that separate property (assets owned before the marriage, non-comingled assets, or assets acquired through inheritance) remain with the original owner regardless of which state you are in. Only assets that are comingled, such as shared bank accounts, and assets that were acquired during the marriage are considered marital assets for division purposes.

If you want to learn more about equitable distribution vs community property, check out our article titled “Is Everything Split 50/50 in a Divorce?” You can also read Illinois’ equitible distribution statute titled 750 ILCS 5/503.

Spousal Support (Alimony) and Disability

A key question in divorces, especially ones where one spouse suffers from a disability, is whether spousal support will be awarded, and if so, how much. Disability can have a significant impact on alimony determinations.

• For the Disabled Spouse: If your spouse is disabled, unable to work, or just unable to work as much, they may request alimony to help cover living expenses. The court will consider their disability, income, income from benefits, and the lifestyle maintained during the marriage when deciding the amount and duration of alimony. In some cases, permanent alimony may be granted to provide long-term financial support, especially if the disabled spouse is unable to work.
• For the Non-Disabled Spouse: If you are the one paying alimony, the court will consider your income, ability to pay, and the disabled spouse’s financial needs. Disability benefits alone often do not meet the full financial needs of a person with disabilities, making alimony a crucial issue.

Child Support and Disability

If you and your spouse have children, child support will also need to be addressed. Child support is typically calculated based on the income of both parents, but how disability benefits factor into this depends on the specific type of benefit:

• SSDI Benefits: Child support is calculated using both parents’ incomes, including SSDI benefits. Additionally, if a parent receives SSDI, their children may qualify for dependent benefits, which can sometimes be credited toward child support obligations.
• SSI Benefits: Since SSI is need-based, it is generally not considered income for child support calculations. However, if the disabled spouse is receiving other income or assets, that will be included in the calculation.

To learn more about child support, check out our article titled “Why Do I Pay Child Support With 50/50 Custody in Illinois?”

Parenting Time

Depending on the disability that you or your spouse suffers from, getting majority parenting time may be difficult. Parenting time is typically split as close to 50/50 as possible because the courts believe having two parents involved in the life of their child is what is best for the child.

Judges generally look at many different factors when determining parenting time, such as your child’s age, health, relationship with each parent, as well as each parent’s ability to care for and support their child’s needs. The court will not make parenting time decisions based solely on a disability, their decisions are instead based solely on the best interests of the child..

However, if one spouse is unable to meet the needs of the child due to a disability, then their parenting time may be reduced.

Medical and Healthcare Considerations

When divorcing someone on disability, healthcare is often a major concern. If your spouse has been relying on your employer-sponsored health insurance, they may lose that coverage post-divorce. They may need to find alternative coverage through:

• COBRA: A federal program that allows a former spouse to continue their health coverage for a limited time after divorce, though the premiums can be high.
• Medicare or Medicaid: Depending on the type of disability benefits they receive, your spouse may be eligible for Medicare (if they receive SSDI) or Medicaid (if they qualify for SSI).

Consulting a Family Law Attorney

Divorces involving a spouse on disability require careful attention to financial and legal details. Disability benefits, healthcare needs, and the financial support required for long-term care can all complicate the divorce process. Consulting a family law attorney who has experience with disability-related divorces is essential. They can help ensure that your rights are protected and that the divorce agreement is fair, given the unique circumstances.

Conclusion: What Happens When You Divorce Someone on Disability?

Divorcing someone on disability introduces complexities beyond the typical divorce process. While disability benefits may not be directly affected by the divorce, they will play a significant role in the financial arrangements surrounding alimony, child support, and property division. Seeking legal advice and understanding how the law treats disability in the context of divorce will help you navigate these challenges and achieve the best possible outcome.

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The Family Law attorneys at Koth Gregory & Nieminski understand that your family is the top priority, which is why we offer SAME-DAY APPOINTMENTS. If you need a divorce or other family law services, you can schedule your first meeting through our online appointment calendar. We look forward to meeting you.

Disclaimer: This article (What Happens When You Divorce Someone on Disability?) may contain information that is outdated as Illinois law continuously evolves. Meeting with an experienced family law attorney is the best way to ensure you are receiving the most current information on What Happens When You Divorce Someone on Disability?

Published by Dustin Koth on January 31, 2025