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Divorce Lawyer: Post-Divorce Disability Payments in Louisiana

Dividing your retirement in Louisiana can be complicated.  This is even more the case where the disability benefits are included.  Here is a case to explain this area of the law.

After a marital breakup, a trial court must divide the community property assets.  Pensions or retirement plans can be a difficult asset to divide even for an experienced divorce lawyer.  Do not let your former spouse bully you into a settlement on disability payments.  Educate and enlighten yourself on the law.

Retirement plans have often been the topic of hotly contested legal battles; a divorce lawyer can work on a case for a long time before reaching a conclusion, in extreme cases.  In Louisiana, the Supreme Court has distinguished payments received under a retirement plan due to disability from payments received under a retirement plan due to reaching retirement age.  When a spouse receives retirement payments due to disability, the payments are paid in lieu of income that would otherwise be the employee’s separate property.  As such, retirement benefits paid to a spouse because of disability are not community property.  

In a case called Brick v. Brick, the wife appealed the judgment of the trial court ruling that her former husband’s disability income after the end of his marriage was his separate property.  However, the trial court ruled that once he reaches retirement age, the retirement payment becomes community property.  He appealed this portion of the trial court’s ruling.  Because the law is complicated even for an experienced divorce lawyer, it is sometime important to go to a higher court to get clarification.

The court found that the former husband’s payments substituted for income that would have been his separate property.  Therefore, the disability payment is his separate property.  Next, the appellate court turned to the former husband’s claim asserting that the payments should be classified as his separate property for his entire life.

The appellate court quoted some law school professors.  After reviewing the evidence and considering the professor’s comments in a book occasionally used by a divorce lawyer, the appellate court found that the former husband’s payments become community property once he reaches retirement age.  Therefore, the trial court’s ruling was affirmed on both claims.

So what can a divorce lawyer learn from this ruling? If you get disability through your employment after you’ve ended your marriage, then your disability payments are your separate property. However, once you reach retirement age, your payments will be classified as community property regardless of how your pension fund classifies payment.

Article Tags: Disability Payments, Trial Court, Separate Property, Former Husband’s

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