The Law Office of Kurt H King

Folks divorcing later in life sometimes face the issue of what happens to SSI (Supplemental Security Income) if judge awards Maintenance (aka, Alimonty) and/or part of the spouse’s Pension/Retirement. Simply put, will you still receive the same amount of SSI if you receive awards of Maintenance or part of your spouse’s Pension or Retirement? Or will your SSI be reduced?

If you face that situation, you may find this law helps answer your question by indicating that awards of Maintenance or Pension/Retirement do reduce SSI practically dollar-for-dollar.

First, Federal law, section 42 U.S.C. section 1382a, (also known as section 1612 of the Social Security Act), clearly includes both award of (1) Maintenance and of (2) Pension/Retirement, as part of “income” for SSI purposes:

            “Sec. 1612. [42 U.S.C. 1382a] (a) For purposes of this title, income means both

            earned income and unearned income; and—

                        (1) earned income . . . ;

                        (2) unearned income means all other income, including—

(A) support and maintenance furnished in cash or kind; except [none applicable];

(B) any payments received as an annuity, pension, retirement, or disability benefit, including veterans’ compensation and pensions, workmen’s compensation payments, old-age, survivors, and disability insurance benefits, railroad retirement annuities and pensions, and unemployment insurance benefits; . . . .”

Second, regulation 20 C.F.R. 416.1123 states that such Unearned Income will be counted in reducing SSI payments to the person receiving SSI:

            “Section 416.1123.  How we count unearned income.

                 (a)  When we count unearned income.  We count unearned income at the earliest of

            the following points: when you receive it or when it is credited to your account or set

            aside for your use.  We determine your unearned income for each month.  We

describe exceptions to the rule on how we count unearned income in paragraphs (d), (e)

and (f) of this section.”  [Exceptions inapplicable.]

                       

Third, the official Guidance entitled “Understanding Supplemental Security Income SSI Income—2021 Edition,” from the Social Security Administration’s website, again makes clear on the first page:

“Income is any item an individual receives in cash or in-kind that can be used to

meet his or her need for food or shelter.”

That Guidance then defines four types of income that are counted when computing SSI—Earned Income, Unearned Income, In-Kind Income, and Deemed Income.  As noted above, Maintenance and Pension/Retirement payments both count as Unearned Income.

And, Example A of the Guidance illustrates how Unearned Income is credited against the SSI amount otherwise due (using Social Security as the example of unearned income which is analogous to maintenance or pension/retirement varieties of unearned income)—

EXAMPLE A—SSI Federal Benefit with only UNEARNED INCOME

Total monthly income = $300 (Social Security benefit)

1)         $300    (Social Security benefit)         [the unearned income example]

             –  20     (Not counted)                         [$20 per month exclusion from income]

            =$280  (Countable income)

2)         $794    (SSI Federal benefit rate)

            -280     (Countable income)

            =$514  (SSI Federal benefit)

Conclusion: Example A shows the basically dollar-for-dollar reduction of SSI due to an award of Maintenance or Pension/Retirement in favor or the person receiving SSI in a divorce case. as both constitute countable Unearned Income.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

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