Can Social Security Benefits be Divided in Divorce?

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Clients going through a divorce from a long marriage go through the difficult process of trying to divide up assets and equitably divide marital property.

Retirement benefits acquired during the marriage are considered marital property and can be considered during the equitable division of marital property.  One might logically think that Social Security benefits acquired during the marriage would also be considered in the equitable division of marital property.  However, Social Security benefits cannot be reached for purposes of a property division, either by agreement or court order. 

The Social Security Act 42 U.S.C. § 407(a) prohibits the assignment of future payments of Social Security benefits and provides:

“The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency.”

In interpreting Section 407(a), the U.S. Supreme Court has ruled that it imposes a “broad bar against the use of legal process to reach all social security benefits.”

In South Carolina, the Court of Appeals has found that the family court lacks subject matter jurisdiction to divide Social Security benefits in a property distribution, even if the parties agree to it.  The Court of Appeals reached this conclusion by citing federal and state cases that have consistently held that the statute preempts state courts from treating Social Security benefits as property. 

So what does this mean for the client?  It means that even if the parties agree, a South Carolina court cannot order or force the distribution of future Social Security benefits.

With that being said, even though Social Security benefits are not subject to equitable distribution, the benefits have been held to be an economic factor in some states, which can be considered in making decisions about property division.

If you have questions about divorce matters in Greenville, South Carolina, or in the surrounding counties of Spartanburg, Anderson, Pickens or Oconee, please give us a call. 

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