Are Benefits From Disability Included When Dividing Property?

Every case is independent and will be decided upon by its own individual merits. With that being said, it is not uncommon for the courts to award a portion of disability payments to a spouse during property division. It all depends on the specifics of your situation.

Disability and Property Division

It is possible. Depending on the details of each case, the courts may decide to allow this.

This is demonstrated in the case of Loveland v. Loveland 147 Wis. 2d 605, 433 N.W.2d 625 (Ct. App. 1988)[1]​. In this case, the wife was awarded 1/4th of her husband's military pension. He opted to receive a portion of his pension as disability from the Veteran's Administration. He appealed this decision, but the court of appeals affirmed.

In the case of Duffy v. Duffy 132 Wis. 2d 340, 392 N.W.2d 115 (Ct. App. 1986)[2], a husband received disability payments from a trust. The disability payments were not to be considered income until the husband reached the age of 65, when the money would be considered synonymous with a retirement pension. This was the time where the money would be divisible according to the court order. This is just one example as to how a case such as yours could play out.

Is Military Disability Included When Dividing Property?

Military benefits[3] should not be divided by the courts, however there are exceptions. In terms of a military pension plan, it can be crucial to someone when looking at marital assets and dividing up property. For that reason, courts tend to include pensions in the marital estate.

In the case of Pfeil v. Pfeil 115 Wis.2d 502, 341 N.W.2d 699 (Ct. App. 1983), it was decided that in general military disability benefits are not an asset that should be divided by the parties. However if a person purchases land entirely with disability benefits payments, their exemption is lost when investing in the real estate purchase. Once that exemption is lost, the court has every right to consider the asset in a property division.

In the case of Pelot v. Pelot, 116 Wis.2d 339, 342 N.W.2d 64 (Ct.App. 1983)[4], the court of appeals reviewed pensions and decided that when a divorce is granted, the present value of a pension fund should usually be included in the marital estate for purposes of property division. A property interest in a pension plan usually cannot be divided but its value should be taken into account; that value is its present value when the divorce is granted.

Are SSI benefits Subject to Child Support?

This question can best be answered by referring to the case of Langlois v. Langlois 150 Wis. 2d 101, 441 N.W.2d 286 (Ct. App. 1989)[5]. In this instance, the father motioned to modify his child support payment and vacate a seek-work order. The circuit court denied his request. The father appealed, and the court of appeals reversed the decision that his SSI benefits were subject to child support payments, but affirmed the seek-work order. Legal representation will be able to navigate the judicial system and help you to find a reasonable and lawful outcome.

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