Are VA Disability and SSDI Divorce Assets for Alimony in Wisconsin?

by Jimmy Verner
Maintenance can be based on disability payments in Wisconsin.

Maintenance can be based on disability payments in Wisconsin.

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Alimony -- simply called maintenance in Wisconsin -- permits maintenance upon divorce based on a number of factors, including the amount of money the parties earn. If a spouse is not working because he is disabled, and he receives disability payments, the Wisconsin courts consider these payments when deciding whether to award maintenance. The courts take disability payments into account because they are a replacement for earnings.

Setting Maintenance

Post-divorce maintenance has two purposes. The first is to support the spouse who receives maintenance, often while that spouse becomes self-supporting; the second is to ensure that the parties' financial arrangements are fair and equitable. By statute, a Wisconsin court considers a number of factors when awarding maintenance. For example, the court considers the length of marriage, the ages of the spouses, their physical and emotional health and how much property each spouse received in the divorce. In addition, the court takes into account how much money the parties make.

Veteran's Disability

The Department of Veterans Affairs pays disability compensation to persons who become at least 10 percent disabled because of an illness or injury that occurred while on active duty in the military or in training. The disability benefits also cover an existing illness or injury that was made worse while in the service. The percentage of disability plus the number of the veteran's dependents determine how much assistance the veteran receives. VA disability benefits substitute for the money that the recipient could have earned had he not become disabled and are paid tax free.

Social Security Disability

Social Security disability benefits are funded by the Social Security tax. To be eligible for these benefits, you must have paid into the system through withholding from your paychecks. Unlike VA disability, you are either disabled or not -- there is no percentage of disability. The amount you receive depends on how much, on average, you have paid into the Social Security system over your lifetime. Social Security disability is available to you if you can't work because of a medical condition that is expected to last a year or more, or is likely to result in death. Like VA disability, Social Security disability is designed to substitute for the wages you no longer can earn.

Disability Payments Are Income

The Wisconsin Supreme Court has ruled that VA and Social Security disability payments are income for maintenance purposes, because the payments are substitutes for what the person could have earned by working. But, if one spouse receives a substantial amount of property in the divorce, it is possible that a court won't order the disabled spouse to pay maintenance when the amount of his disability payment is small and he requires that money for necessary living expenses.