By William J. Phelan, IV, Esq., Cordell & Cordell Family Law Attorney
One of the most notable federal social safety net programs of the past century are the disability benefits programs administered by the Social Security Administration (SSA).
Specifically, SSA’s Social Security Disability Insurance program (SSDI) and Supplemental Security Income program (SSI) have offered relief to millions of Americans with disabilities who have been unable to work (as well as their families). In general, an applicant for SSI or SSDI must show that he or she is under a disability and is unable to engage in “substantial gainful activity.”[1]
Frequently, one will find that a party to a divorce, custody, or support matter is the recipient of either SSDI or SSI benefits. Yet what does receiving such benefits mean if that person is also part of family law litigation?
The impact that a party’s receipt of SSA benefits has on his or her family law case will vary—both in regard to the type of disability involved and how the state’s laws handle the benefits and having a party with a disability. Yet having a general understanding of the potential issues when there is a party who receives SSA disability benefits can prove beneficial.
For purposes of this article, I will be citing portions of Pennsylvania law; therefore, this article is only meant to provide general observations on these issues based on Pennsylvania law.
It is also worth noting that the nexus between the SSA disability benefit programs and family law cases is considerable, and the discussion in this article is by no means exhaustive—instead this article is designed to offer a general lay of the land with some practical points for consideration.
Support
Whether the support case is for the support of a child or the support of a spouse (or both), SSA disability benefits are considered by the Court in various ways.
The Pennsylvania Rules of Civil Procedure explicitly list Social Security disability benefits as income when determining a party’s monthly income.[2] Yet the Rules continue on to say that SSI benefits are not to be counted as income[3] because they are a public benefit.
Therefore, if a party is receiving SSDI and SSI, it will need to be determined what portion of the monthly deposit from SSA is SSDI (and to be counted towards income) and what portion is SSI (not to be attributed as income). While monthly deposits to a bank account from SSA may be in the form of one lump sum, when SSA issues documentation on disability benefits, there are usually separate letters that go out to the recipient that list SSDI benefits and SSI benefits.
Depending on when a support order is to become effective and when the recipient begins to receive the federal payments, there may also need to be consideration of back pay from SSA.
An SSDI recipient will have an alleged onset date (AOD), a date that is often months or years prior to the recipient’s initial award of benefits. If SSA agrees with the recipient that the disability began on the AOD, then there could be hundreds and even thousands of dollars of back pay that could be considered as income in the support case.
Back pay typically comes in anywhere from one to three lump sum payments after benefits are initially granted; however, this back pay is meant to compensate the recipient for the prior time he or she did not work. Therefore, if a support order is to go into effect prior to the initial receipt of disability benefits, back pay may need to be considered in the support case.
Another consideration for a child support case is whether a child who is the subject of the case is receiving benefits from SSA because his or her parent is receiving disability benefits.
Oftentimes a disability benefit recipient will also receive derivative benefits to pay for the support of his or her child. Depending on who receives this benefit on behalf of the child, those funds are allowed to be applied in a certain fashion as income for that particular parent.[4]
Usually, SSA will award these derivative benefits to the parent who has custody of the child.
Divorce
When determining what spouse is to receive what portion of the marital estate, SSA benefits, as they stand alone, do not constitute marital property that can be divided in a divorce. In following U.S. Supreme Court precedent, the Pennsylvania Superior Court has held that SSA benefits are not subject to equitable distribution.[5]
Yet this case law does not necessarily mean that the receipt of SSA benefits has no place in the Court’s determination as to how to divide the rest of the marital estate. It is important to note that the Pennsylvania Divorce Code directs Courts to consider factors that may be associated with the receipt of SSA disability benefits.
For example, the age, health, and source of income of the parties is to be considered by the Court when dividing the marital property.[6] If the Court determines that the recipient of disability benefits is too impaired to sustain him or herself after the divorce, that individual may be entitled to more of the marital estate.
Of course, whether such a skewed distribution of the marital estate is warranted is an extremely fact-specific inquiry that the Court must make on a case-by-case basis.
Turning towards alimony, if a party is unable to perform substantial gainful activity due to receiving SSA disability benefits, such a fact may impact whether a Court awards alimony. The Pennsylvania Divorce Code requires the Court to consider, among other things, the physical and mental conditions of the parties and the relative needs of the parties.[7]
While a finding of being disabled by SSA is not dispositive in whether that person is entitled to alimony, a Court is still allowed to award alimony due to the existence of a disability; and just because a spouse will continue to receive public assistance after the divorce (such as SSDI or SSI), that fact does not relieve the other spouse from an alimony obligation.[8]
Cordell & Cordell understands the concerns men face during divorce.
Custody
Just because a parent receives SSDI or SSI does not mean, per se, that this parent is to have his or her custody rights affected. Pennsylvania law calls for a best interest of the child analysis when determining custody rights of the parent.
As background, the court is required to look at 16 factors when determining what custody award is in the best interest of the child.[9] One of the more important factors is how a parent’s ability to attend to the daily physical, emotional, developmental, educational and special needs of the child impacts that child’s safety.
With this standard in mind, the Court can order a parent to undergo a physical and/or mental evaluation.[10] This report may eventually be read by the Court and used in its ultimate determination.
If a parent is determined to be disabled by SSA, it is important to remember that such a finding is in the sense of employment — specifically that the individual is no longer able to perform substantial gainful activity due to his or her disability.
An inability to perform work does not necessarily mean that an individual is unable to attend to the well-being and safety of his or her child. Whether a parent’s disability effects the best interests of a child is a very fact-specific inquiry that must be made by the Court; and this inquiry will usually look at the type of the disability (e.g., does the parent have diabetes vs. bi-polar disorder) as well as the severity of the disability (e.g., does the parent experience a minimal or temporary limitation vs. a complete inability to care for even him or herself, and thus a child).
A proper guiding rule proposed here is that the receipt of SSA disability benefits should not be utilized to automatically impact the custody rights of the recipient. Instead, the disability should be analyzed within its own specific instance in order to determine if the disability ultimately effects the best interests of the child.
As can be seen, there are a myriad of ways that SSDI and SSI benefits (and the fact that a party is receiving said benefits) can play into your average family law case. Whether or not the receipt of such benefits plays into a particular case is strictly dependent on the applicable state laws and how the Court determines the facts of the case.
Therefore, if you have a concern about how SSA disability benefits may impact your domestic relations case, it is suggested you contact an attorney who handles family law matters in your jurisdiction, such as Cordell & Cordell, to see how the state’s laws can specifically help you with this serious situation. This type of attorney should be helpful in providing you specific assistance for your matter.
William J. Phelan, IV, Esq., prior to joining Cordell & Cordell, practiced Social Security disability benefits law, handling numerous cases in the Mid-Atlantic region.
[1] See 42 U.S.C. § 423(f)
[2] Pa.R.C.P. 1910.16-2(a)(6) (citing 23 Pa.C.S.A. § 4302).
[3] See Pa.R.C.P. 1910.16-2(b)(1).
[4] See Pa.R.C.P. 1910.162(b)(2)(A).
[5] Powell v. Powell, 577 A.2d 576, 580 (Pa.Super. 1990).
[6] See 23 Pa.C.S.A. § 3502(a).
[7] 23 Pa.C.S.A. § 3701(b).
[8] See Lawson v. Lawson, 940 A.2d 444 (Pa.Super. 2007).
[9] See 23 Pa.S.C.A. § 5328(a).
[10] See Pa.R.C.P. 1915.8.
