This Week’s Blog by Jaime S. Dursht
Are Social Security Benefits an Asset of the Marriage Subject to Division?
Future Social Security benefits are governed by federal law which specifically prohibits the transfer and/or assignability of the benefit. (Social Security Act, 42 U.S. Code § 407) The United States Supreme Court has held that the right to receive Social Security benefits does not constitute property. State courts hold that federal law preempts state property laws that would otherwise subject Social Security benefits to classification as marital property for division.
Are Social Security Benefits Considered in Computing Alimony?
If Social Security benefits are in pay status and being received, then it is considered a current source of income and included in the determination of support payable under the alimony statute.
Can Social Security be Garnished to Pay Alimony and/or Child Support?
Yes. In 1975, Congress carved out an exception for alimony and child support from the prohibition of subjecting Social Security benefit funds to execution, levy, attachment, garnishment, or other legal process. In cases involving a judgment for unpaid alimony, the Social Security Act permits garnishment of benefits for the judgment as well as court costs and penalties.
Does an Ex-Spouse Have a Right to Claim the Former Spouse’s Social Security Benefit?
Yes, if you meet the following criteria:
- Age 62
- Divorced from someone entitled to receive Social Security benefits
- The marriage had been for at least 10 years
You are eligible to apply for benefits on your former spouse’s benefit even if he or she has not retired, and as long as you divorced at least two years before applying. If you are entitled to your own Social Security benefits, your benefit amount must be less than you would receive based on your ex-spouse’s record, and you will be paid the higher of the two benefits, but not both. Also, this would have no effect on the benefits your ex-spouse is eligible to receive.
Broder & Orland LLC, with offices in Westport and Greenwich, concentrates in family law and divorce. Our attorneys are very experienced with the financial issues faced by individuals in a divorce, and understand the importance of accurately identifying assets and available sources of income in advising our clients about establishing a financial plan.