If Ireceive $900 a monthfrom a private insurance company for my disability, is she entitled to half in a divorce?

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If Ireceive $900 a monthfrom a private insurance company for my disability, is she entitled to half in a divorce?

Asked on October 3, 2011 under Family Law, Texas

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Your wife could make a potential claim to the the disability payments depending on how they arose and the true nature of the payments.  The information in your question indicates that you receive a $900.00 payment for a disability, but you don't indicated how the disability occurred and/or if it was the result of some type of settlement.  These are important details because the actual wording of the written obligation can change the character of the property.  If the payment is considered "community property", she would have a right to claim part of the payment.  If the payment is consider "separate property", she would not be entitled to any part of it in the divorce.  If you just consider them "disability payments," but they are really part of a settlement through an insurance company for personal injuries, then those types of payments are considered separate property in Texas.  On the other hand, if you had an injury or illness that resulted in a payout through on insurance company that is formally classified as a "disability payment", then that is consider a replacement of wages or income-- and as such is considered community property in Texas.  What you call it does not necessarily control.  How the agreement, settlement, or contract classifies does control.  As an additional note, you ask if she is "entitled to half".  Texas uses a standard called fair and equitable, not a fifty-fifty division.  If your wife has sufficient assets on her own, then the court can deem the disability payments yours, and other assets or property hers.  Many times the split is fifty-fifty, but it can adjust depending on the needs and agreements of the parties and any special circumstances. If you are disabled, you may even be able to make an argument for a greater share of the marital estate in lieu of asking for spousal support from your wife.  Since these tend to be fact specific issues, you should at least consult with a family law attorney to review all of your options before filing for divorce.


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