If you or your spouse are disabled and receiving disability insurance benefits through the Social Security Administration then you are likely aware that your children are also eligible to receive benefits. Your or your spouse’s inability to work has likely placed your family into the unenviable situation of relying on these benefits as at least part of the means by which your family pays bills on a monthly basis. Financial problems follow disabled people like moths to a flame in many cases.
What also follows around disabled people is, unfortunately, family strife and hardship. The inability to earn a more sizeable income coupled with an inability to live a life free of mental and physical restrictions is a perfect environment for sowing family discord. With that discord can come thoughts and considerations of filing for divorce. While the thought of divorcing your disabled spouse or the thought of your spouse leaving you while you are dealing with a disability may sound alarming it is a reality for many people in your situation. Rather than ignore the potential consequences of a divorce I think it is worthwhile to understand the issues associated with it.
One of those issues is that of your child being able to receive Social Security Disability Insurance and child support at the same time. Is a child able to “double dip” and receive both types of financial benefit at the same time? Today’s blog post from the Law Office of Bryan Fagan will discuss that very subject with you all.
Disability and divorce
We all know that on some level divorce is hard on families. Even if your family is emotionally prepared for a divorce it may not be financially ready. The opposite is true as well- while your family may be well off financially and not at risk of losing a house or having bill payments go missing, the emotional framework of your family may not be as sturdy. Whatever the problem or weakness in the framework of your family, it is likely that adding a disabled spouse into the equation is likely to make everything more combustible.
Fortunately either through your work history or through supplemental income, you or your spouse are likely eligible to receive assistance to meet your financial obligations through the Social Security Administration. If you have children under the age of 18 then your children are possible beneficiaries under these situations as well.
Social Security benefits count as income when calculating child support
Child support in Texas is calculated based on a percentage being multiplied against your spouse’s net monthly income. For one child, 20% of your spouse’s net monthly income is subject to being applied to your child support obligation. Two children is 25%, and so on up to at most 50% of your spouse’s net monthly income. In order to qualify for SSDI benefits your spouse must have worked at least five of the past ten years.
How this impacts your child as far as his receiving benefits for having a disabled parent
Any benefits that your child receives a monthly benefit also counts as income for your spouse in the above child support calculation. Let’s consider an example in order to illustrate this point a little better.
Your spouse receives social security benefits totaling $40,000 annually. Under the child support laws of the state of Texas, your spouse would be responsible to pay around $8,000 of that in child support on a yearly basis. However, if your child already receives $9500 a year in benefits as a child recipient of your disability benefits then your child will be basically double dipping into both systems.
The State of Texas will adjust your spouse’s child support obligation accordingly based on direct payment of SSDI benefits made to your child. It is possible that if the direct payment of SSDI benefits to your child equals or exceeds their basic child support payment that he would be making monthly that he would not need to pay any child support payments. You can basically take the “guidelines” number of child support and then subtract from that number the dollar amount of disability pay.
How benefits are paid from the Social Security Administration
If you are named as the custodial parent (the parent with the right to determine the primary residence of your child) then you are able to receive payments of SSDI benefits directly from the SSA. Social Security Disability benefits are relatively simply to apply for but you will likely need an attorney to represent you if you are denied benefits and need to appeal the denial to an Administrative Law Judge. Contact your local Social Security Office to learn more about the process of applying for benefits.
Can your Social Security benefits be divided up in a divorce in Texas?
Another common question that I receive is whether or not your Social Security Disability benefits can be divided up in a divorce. While they are not part of your community estate in Texas and subject to a just and right division with your spouse, they do count as income and would be part of the calculation of child support payments. Falling behind on child support payments means that at the most 50% of your monthly disability payments can be extracted for paying back child support.
Property acquired during your marriage is what counts as community property (with some exceptions). Social Security disability benefits under federal law are classified as separate property that you or your spouse own independently of one another. This is true whether or not you began to receive SSDI benefits before or during your marriage.
What about benefits through the Veterans Administration? How are those treated in divorce?
Disability benefits awarded to either you or your spouse is income that is provided to you to compensate you for your inability to earn an income from sustained work activity. These sums of money, while typically not substantial, are supposed to be a reasonable facsimile for monthly income from a standard, hourly wage job.
Note that the VA does not intend these payments to be the only income that you or your spouse use to live on, but to act as a supplement to other sources of income. Child support can be based on VA disability benefits in the same way as SSDI benefits count as income when it comes to child support calculations.
Likewise, VA benefits can be garnished in the event that you or your ex-spouse fall behind in paying child support. There are some exceptions to this rule that would require more time and space than we have available to us in this blog post. For more information on this please contact an experienced family law attorney, such as those with the Law Office of Bryan Fagan, PLLC.
Regardless of the situation that you find yourself in, it is always best to hire a family law attorney who has experience handling divorces that involve disabled persons. While the divorce process itself does not vary based on any physical or mental impairment that you suffer from, your individual circumstances likely warrant specific assistance that an attorney who has not worked with disabled persons cannot typically provide.
Questions on divorce as a disabled person? Contact the Law Office of Bryan Fagan, PLLC
The Law Office of Bryan Fagan, PLLC takes a great deal of pride in representing people from all walks of life in child custody, divorce and other family law cases. It is our objective to not only put your interests ahead of our own but to provide representation for those who are most in need of it. Thank you for your time and interest in learning more about this important subject within family law in Texas.
If you have any additional questions or are seeking clarification on something that you read today please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations six days a week with a licensed family law attorney in a comfortable and pressure free environment. We can answer your questions and address your concerns with no obligation required.