In this matter, the husband (hereafter “defendant”) requested that the court declare his Social Security Disability benefits and his Worker’s Compensation benefits “separate property” under the Domestic Relations Law. The defendant argues that in calculating his income for purposes of maintenance, the Court should not consider the income from his separate property. The wife (hereafter “plaintiff”) disagrees and claims that regardless of whether these benefits are separate property, the income paid to the defendant must be included in the calculation of spousal maintenance.

There is no dispute that the worker’s compensation and disability payments are the defendants separate property. As such, the Court did not equitably distribute the corpus of such funds, or a percentage of such funds, to the plaintiff. The appellate divisions in prior decisions have also held that the “proceeds” from these special forms of separate property were also separate property. However, the New York courts have also held that the fact that a source of the income is separate property does not prohibit the Court from considering the annual income from these funds as “income” to be included in the calculation of maintenance. “Income” for purposes of the maintenance formula is defined in the Child Support Standards Act and specifies that disability benefits must be included in gross income.

The Court disagrees with the principal argument made by the defendant that any maintenance calculation should not include the income received for his disability. The fact that a portion of the defendant’s income is derived from an asset determined to be separate property does not render that income immune from being included in his maintenance obligation.

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