Can Social Security Disability Be Attached In a Divorce?
By Teo Spengler
Updated March 19, 2020
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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.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.