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Question asked on March 1st, 2019

Q: My husband and I of 36 years are getting divorced. During our marriage I worked part time to raise the children and my husband worked more than full time hours selling cars. In the end he had paid into SSDI mote Thani had. 2011 we both became disabled. We have been seperated for 3 years but my health is not good. I have tried to make a little extra money to live but I failed. Since we both received SSDI his approx 2200 and mine 1414, may I ask the judge to grant me Alimony? He has only SSDI no other assets

A: There is a single case in Nevada (Metz) dealing with the issue of SD and SSI benefits.  It says:

Parents have duty to support their children, citing NRS 125B.020.  The child support statute authorizes a district court to determine a parent’s support obligation based on “gross monthly income,” which could include both SSI and SSD benefits, per NRS 125B.070.

However, a federal statute may preempt a state statute when they conflict.  The Court framed the issue of whether federal law exempted SSI and/or SSD from being considered as gross monthly income under the child support statute.  The Court distinguished between SSI and SSD.

SSI is a welfare program designed to assure that the recipient’s income is maintained at a level viewed by Congress as the minimum necessary for the subsistence.  SSI is intended to supplement a recipient’s income, not substitute lost income because of a disability.  SSD is a disability insurance program that provides benefits for disabled workers and is available based on an employee paying into the social security system during employment.  SSI does not have that requirement.  SSD is intended to replace lost income when an employee is unable to work after becoming disabled.

The Court concluded that gross monthly income is no longer limited to income from employment and that both SSI and SSD qualify as a source of a parent’s gross monthly income under NRS 125B.070.  However, the federal exemption for SSI benefits also preempted Nevada law; it may not be considered for calculating child support.  Because Congress had consented to income withholding, garnishment, and similar proceedings for child and spousal support enforcement for SSD, those benefits may be used to satisfy a child support order, and these benefits may be included in a parent’s gross income in determining child support.

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What is “available” for child support is also available for alimony.  So yes, you can make an alimony claim based on the difference of total income available to each of you; it is still a discretionary call with the court whether or not to grant that request.  You should, if possible, consult with a family law specialist well versed in this area.