The Law Office of Kurt H King

May 10, 2021

SSI reduced by Maintenance/Alimony or Award of Spouse’s Pension/Retirement

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 incomeWe 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


Family Law, Personal Injury & Worker’s Compensation, Employment Law, General Matters

May 22, 2013

The General Rule on Maintenance in Missouri

Filed under: Divorce,Family Law,Litigation,Support — kurthking @ 9:38 pm
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The recent May 7, 2013, opinion ED98727 out of the Eastern District of the Missouri Court of Appeals in In re the Marriage of John P. McMillian and Susan I. McMillian, follows established Missouri law on  how maintenance (formerly called alimony) is to be awarded by Missouri courts in divorce cases.

Here the husband enjoyed a substantial income while the wife’s income had diminished with no real signs of improvement in the future.  Not having settled the issue of maintenance, the parties tried the case to the court in a bench trial.  The trial judge awarded maintenance but limited it to three years and declared it to be non-modifiable.

The Eastern District reversed as it found no or insufficient proof that the wife’s income would increase by three years time.  Accordingly, the court of appeals ordered that such maintenance shall be paid indefinitely but that the maintenance shall be modifiable so that the husband may move to modify the maintenance award should the financial circumstances of the parties change significantly in the future.

This case illustrates Missouri case law holding that to limit the duration of maintenance there must be adequate proof that the financial situation of the parties will definitely change at a certain point in the future.   Lacking such proof, trial courts are not to set a time limit, unless the parties agree on one.

So if you want to limit the time that you will have to pay maintenance, try to reach an agreement which may well mean that you will have to sweeten the pot by offering your spouse more maintenance than the judge may order so that he/she will agree to a cut-off date.  This is a dangerous issue to take to trial so try to settle it.


Kurt H. King

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


Family Law–Divorce, Modifications, Child Custody, Support & Visitation, Paternity

Personal Injury, Workers’ Compensation, Chapter 7 Bankruptcy

January 6, 2011

Maintenance/Alimony and Divorce in Missouri

Filed under: Divorce,Family Law,Support — kurthking @ 5:39 pm
Tags: , ,

Spouses headed for divorce often wonder about maintenance–what used to be called alimony.

Here in the Kansas City area, and presumably other Missouri courts, the judges lean away from maintenance. This is especially true where the marriage is short–less than 10 years for instance.

Maintenance in the typical situation arises when one spouse lacks income to pay his/her necessary bills while the other spouse has income to contribute. Many times a judge will take a sharp pencil, so to speak, to the expense amounts of the needy spouse; then do likewise to the expenses of the spouse who may have extra income. If that review shows a legitmate shortage of income for one spouse, and income remaining after expenses for the other spouse, then the extra income may be ordered paid to the needy spouse in an amount that the court finds is best after the court also considers the factors set out in Missouri statute 452.335 (marital misconduct, time to re-educate, etc.). Often times neither spouse is really happy about a maintenance order–one spouse thinks it too high, while the other thinks the amount awarded is too low.

A major consideration in maintenance cases is how long will the payor have to pay maintenance. Death or remarriage of the payee often terminates the obligation to pay maintenance unless the parties have agree otherwise. The key to keep in mind, however, is that unless there is sufficient proof of a definite date that maintenance is no longer needed, it may be required to be paid until such death or remarriage which may be years and years down the road.

Because the risk of an open-ended order to pay maintenance with no termination date is so great, many spouses faced with a real possibility of the court ordering he/she to pay maintenance often negotiate about a stop date on maintenance. To get that stop date, the paying spouse often has to give up assets or agree to pay a somewhat high amount per month as compared to what he/she thinks he would have to pay if he left it up to the judge to set the amount and duration.

Another motivation for settling to get a definite stop date on maintenance is that without the agreement, the party receiving maintenance can later file a motion to modify under Missouri statute section 452.370 to increase the amount or duration of maintenance being paid. To make that case for modification, the receiving party must prove a substantial and continuing change of circumstances based on the facts of the case. Negotiating a written agreement on maintenance with a provision that it is non-modifiable protects against a later modification case to increase maintenance.

A pretrial conference with the judge is a good way to get a read on what the judge may do and thus what it may take to reach an agreement on maintenance. Each legitimate maintenance case tends to turn on its own facts and there is no formula in which to simply plug numbers as with child support. The experience of counsel in similar cases may be best guide, aided by the pretrial conference.

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

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Personal Injury, Workers’ Compensation

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