SSDI and divorce in Illinois

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Social Security Disability Insurance and Divorce In Illinois

SSDI and divorce in Illinois

In America, almost everyone is expected to work. A person who doesn’t work will have find that their lack of employment has massive implications if they get divorced.  The Illinois family law courts recognize that there is a big difference between people who choose not to work and the people that simply CANNOT work.  People that cannot work eventually get support from the federal government through a program called Social Security Disability Insurance (SSDI).  So, how does Social Security Disability Insurance affect a divorce in Illinois?

What is Social Security Disability Insurance (SSDI)?

Social Security Disability Insurance is a program provided by the United States government which provides benefits to the disabled and certain family members if the disabled worked long enough and paid Social Security taxes. 

Social Security Disability Insurance should not be confused with Supplemental Security Income (SSI). Supplemental Security Income is a program that is strictly need-based, according to income and assets of the applicant.

Social Security Disability Insurance is also not Social Security which is a benefit paid by the United States government to people at an advanced age regardless of disability.

Social Security Disability is awarded if:

  • The applicant cannot do work that they did before;
  • Social Security decides that the applicant cannot adjust to other work because of their medical condition(s); and
  • The disability has lasted or is expected to last for at least one year or to result in death.

As of 2020, if the applicant is working and making more than $ 1260 a month, they will not be found to be disabled. 

Not surprisingly, the average Social Security Disability Insurance benefit is around $ 1200 a month. 

Social Security Disability Insurance will also make an additional payment to the disabled person if they have children under 18.  That payment is usually half of the Social Security Disability Insurance

Social Security Disability Insurance And Child Support In Illinois

A working person who does not enjoy the majority of their children’s time is required to pay child support.

“[T]he court may order either or both parents owing a duty of support to a child of the marriage or civil union to pay an amount reasonable and necessary for support” 750 ILCS 5/505(a)

The amount of child support in Illinois is based on a complicated formula which inputs both parents’ incomes and both parents’ overnights with the children.

But, if the obligor parent receives Social Security Disability Insurance benefits…they don’t have to pay child support.

Every Social Security Disability Insurance recipient with children under 18 will get an additional benefit amount for the children.  The parent who has primary custody of the children can then direct the Social Security office to direct that child’s portion to themselves.

This Social Security Disability Insurance benefit for the children, which the children’s primary residential parent receives becomes the child support amount in total.

This substitute of Social Security Disability Insurance benefits for child support was upheld and certified by the Illinois Supreme Court.

“Social security dependent disability benefits replace support the child loses upon the disability of the wage earner responsible for the child’s support, and such benefits substitute for a parent’s loss of earning power and obligation to support his dependents. Thus, the source and the purpose of social security dependent benefits are identical to the source and purpose of child support—both come from a noncustodial parent’s wages or assets and both provide for the needs of the dependent child and, for our purposes, ‘no principal distinction exists between social security benefits and child support payments’ ”In re Marriage of Henry, 622 NE 2d 803 – Ill: Supreme Court 1993

What Happens To Social Security Disability Insurance’s Children’s Benefit If the Parents Have Equal Custody

We know the primary residential parent gets the Social Security Disability Insurance Children’s Benefit.  But, If the parents of the children have 50/50 joint equal custody of the children in Illinois, who gets to use the Social Security Diabiilty Insurance children’s benefit?

An unpublished Illinois appellate decision ordered the Social Security Disability Insurance recipient with 50/50 custody shall keep the entire children’s benefit. In re Marriage of Benyon, 2019 IL App (3d) 180364 (unpublished)

Social Security Disability Insurance And Maintenance (Alimony) In Illinois

Every divorce in Illinois has the possibility of maintenance (formerly known as alimony) being awarded from the spouse who is earning more money to spouse who is earning less money.

Before any maintenance order is entered, the Illinois divorce court must have a basis for awarding alimony as enumerated by the statute.  One of those reasons is: ”the realistic present and future earning capacity of each party” 750 ILCS 5/503(a)(3)

If one spouse is on Social Security Disability Insurance, that spouse clearly has no realistic present and future earning capacity and, therefore, will be a candidate for maintenance.

But, that doesn’t mean that every divorcing recipient of Social Security Disability Insurance will receive maintenance.  The other spouse still has to be able to afford to pay the maintenance.

To determine the “affordability of maintenance,” Illinois law has a formula.

“The amount of maintenance…shall be calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income. The amount calculated as maintenance, however, when added to the net income of the payee, shall not result in the payee receiving an amount that is in excess of 40% of the combined net income of the parties.” 750 ILCS 5/504(b-1)(1)(A)

So, if a spouse getting Social Security Disability Insurance gets an average of $ 1200 a month. The other can earn up to $ 1800 a month and not pay maintenance. 

The math is simple, take the spouse’s Social Security Disability Insurance benefit and multiply that amount by 1.5.  Anything beyond that amount will have the working spouse paying 33% of their net income as maintenance.

Maintenance, if owed, will be payable based on the following formula.

“The duration of a [maintenance] award shall be calculated by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: less than 5 years (.20); 5 years or more but less than 6 years (.24); 6 years or more but less than 7 years (.28); 7 years or more but less than 8 years (.32); 8 years or more but less than 9 years (.36); 9 years or more but less than 10 years (.40); 10 years or more but less than 11 years (.44); 11 years or more but less than 12 years (.48); 12 years or more but less than 13 years (.52); 13 years or more but less than 14 years (.56); 14 years or more but less than 15 years (.60); 15 years or more but less than 16 years (.64); 16 years or more but less than 17 years (.68); 17 years or more but less than 18 years (.72); 18 years or more but less than 19 years (.76); 19 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order maintenance for a period equal to the length of the marriage or for an indefinite term.” 750 ILCS 5/504(b-1)(1)(B)

Social Security Disability Insurance And The Division Of Marital Assets In An Illinois Divorce

A Social Security Disability Insurance benefit has no impact on a divorcing person’s divison of assets.  

Social Security Disability Insurance benefits are awarded based on the level of disability and the payments into the Social Security system through Social Security taxes.  Social Security does not look at a person’s assets when awarding Social Security Disability Income.

Someone receiving Supplementary Security Income cannot have more than $ 2000 in assets (or $ 3000 if they’re married)

Why does this matter?  Someone pleading poverty because they’re on Social Security Disability Insurance does not mean they’re poor, it only means that their income is limited.

If you’d like to learn more about how Social Security Disability Insurance can affect your Illinois divorce, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce lawyer.