Are Social Security Benefits Marital Property?
Social Security is a government program that was established by the Social Security Act and its purpose is to allow for monthly income payments to retired persons, their spouses, dependent children, and survivors.
Are Social Security Benefits a Marital Property?
Social Security Benefits are something that people who have worked hard all of their lives pay into so that once they are able to retire it could be used to subsidize some of the living expenses retirees have. However, what happens to these benefits in the event of a dissolution of marriage, where property (in most states) acquired during the marriage is considered community or joint property? If a couple has been together long enough then most of the payments that are paid into Social Security occurred during the length of the marriage and should be considered a divisible marital asset, right? Absolutely not! The Social Security Act, enacted by Congress is a federal statue, expressly forbids the division of Social Security Benefits in the event of a divorce and are not to be considered as an accrued property right.
Take for example McCarty v. McCarty (1981). A retired army officer divorces his wife after twenty years of marriage; in the state of California all assets acquired during marriage are jointly divisible and as a result, the wife is awarded a percentage of his Social Security Benefits. He later appeals the case and the California Supreme Court upholds federal law which states that although state laws are the deciding factor in the division of marital assets, federal law generally preempts state laws.
If you feel this is unjust or your situation hast mitigating or unique circumstances surrounding it, it would be advantageous for you to seek the counsel of a divorce attorney who can provide you information on any recourse you may have.