A: Although the answer may differ depending on where you live, the vast majority of state courts do not consider disability benefits to be marital property even if the policy was purchased with marital assets and even though a spouse became disabled during the marriage.
Since, by their very nature, disability benefits protect against the inability of an individual to earn in the future, these benefits are considered by most courts to replace lost future earning capacity and not to be marital property. Since future income is not marital property, neither are disability benefits that replace future income, even if the premiums were paid with marital funds.
On the other hand, since you borrowed from your retirement plan during this period, it seems to us that it would be equitable for you to have sought reimbursement to put your plan back where it was.
Although we certainly don't know the potential result, if the claim were not made prior to your divorce, it is almost certainly lost now.
Q: Without the benefit of marriage, I lived with a man for 14 years. We were both divorced. We did not have a written agreement, but it was understood that we would each own half of what we acquired. We acquired a home that was put in his name because I had some credit problems during my marriage when my ex-husband would not pay some debt. After he became abusive, I left, and now he refuses to give me anything. Is there anything I can do to at least get even with the board?
A: In some states, unmarried cohabitants can secure the division of acquired assets (other than retirement) under the "implied partnership" doctrine. In others, a constructive trust may be imposed. In each situation, significant and expensive litigation will ensue. A lot depends on where you live, so it is best to seek the advice of an experienced litigator in your area.
A word to the wise: If you are going to enter into a nonmarital relationship, it is best to sign a cohabitation agreement which, much like a premarital agreement, can establish exactly how a division of acquired assets will take place should the relationship go south.
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