Can Social Security Disability Be Attached In a Divorce?

by Teo Spengler Google

    Federal law protects Social Security disability benefits from creditors by providing that such benefits are not subject to levy or attachment. Since federal law preempts state law, it follows that state courts cannot allow disability benefits to be attached for most debts. However, this does not mean that disability payments will not be impacted in any way by your divorce.

    Alimony and Child Support

    Federal law excepts child support and alimony from the anti-garnishment provision. If the divorce court awarded your ex-spouse support, she can garnish your disability payments to collect the amounts due every month. A divorce court issues an order directing the Social Security Administration to withhold a certain amount of your disability check and to pay it to your former spouse.

    Division of Property in Divorce

    States that regard all income earned and assets acquired during a marriage as the equal property of both spouses are termed community property states. Generally, these states do not consider Social Security disability income as community property if it has not been mingled with other income; it is the sole property of the disabled spouse, meaning the income is generally not affected by the divorce. However, in states that seek to divide marital property equitably, disability payments are considered by the court in making a division of property.

    About the Author

    Living in France and northern California, Teo Spengler left the active practice of law for full-time writing in 2000. Her journalism appears in newspapers from Alaska to the Basque Country. Spengler earned a master's degree in creative writing from San Francisco State University and a Juris Doctor from UC Berkeley.

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