Arizona Divorce Law Regarding Disability Pay

by Melanie Jo Triebel
Relief is available when disability impairs a person's earning capacity.

Relief is available when disability impairs a person's earning capacity.

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There are two principal types of disability pay which may affect a divorce in Arizona: Social Security disability payments and veteran's disability payments. Arizona law treats each type of disability pay differently, but several basic questions arise when the courts consider each. These include whether the non-disabled spouse is entitled to her own payments, whether the disability payments are a marital asset which can be divided, and how the disability payments interact with support orders.

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Non-Covered Spouse

A married, disabled veteran is entitled to higher military disability pay in recognition of his married status. This increased amount ends, however, if the disabled veteran divorces and no separate payment is available for the non-military ex-spouse. With respect to Social Security disability payments, a disabled spouse may be entitled to his own payments following a divorce based on the work history of the non-disabled spouse.

Marital Asset

Under Arizona law, neither veteran's disability pay nor Social Security disability pay can be treated as a marital asset. This means that such pay belongs solely to the disabled spouse: an Arizona judge cannot order that any portion of these monthly payments must be paid directly to or belongs to the other spouse.

Disability Pay and Spousal Support

An Arizona court can use Social Security disability pay in awarding spousal support to the non-disabled spouse and in deciding upon the amount of such support. In addition, the court may consider disability payments when setting the amount of child support or the amount of spousal support that should be awarded to the disabled spouse.

Miltary Disability Pay and Spousal Support

Arizona is one of only a handful of states that do not allow a judge to use military disability pay in awarding spousal support and does not permit garnishment of military disability pay for support payments. If, however, a court awards a portion of military retirement pay to the other spouse and the military spouse then converts his military retirement pay to disability pay after the divorce proceedings, the court can reclassify the other spouse's original share of the retirement pay as spousal support and order that the military spouse continue those payments.