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How Are Social Security Benefits Handled in a Divorce?

When a couple gets divorced, they must resolve issues concerning the division of marital property, spousal support, and in some cases, child custody and child support. Determining financial issues in a divorce case requires an examination into the parties’ financial resources, including their income, assets, and liabilities.

Generally, state law governs how these issues are resolved in a divorce case. In terms of determining the division of marital assets, many states—including Iowa—will determine what assets qualify as divisible marital property, and then perform an equitable distribution of such property.

In the context of spousal support, courts generally assess each party’s financial needs and resources. If one party does not have adequate financial resources to live at the standard of living they enjoyed when married, the court will order the other spouse to make up the difference in spousal support payments, to the extent they can afford it.

In all matters involving the finances of divorcing spouses, the court will look at their sources of income and any property they own.

Divisibility of Social Security Benefits

The federal government provides Social Security Benefits as a kind of government-run social insurance program. Where insurance policies protect the insured against the risk of certain losses, Social Security protects people against the challenges associated with reaching retirement age. Social Security also provides benefits for people who suffer from certain disabilities that prevents them from earning their own living.

Federal law exclusively governs a person’s entitlement to federal Social Security benefits. Under 42 USC § 407, “The right of any person to any future payment under this title [42 USCS §§ 401 et seq.] shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this title [42 USCS §§ 401 et seq.] shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.”

Federal courts have held that federal Social Security benefits may not be divided as marital property, either directly or indirectly through offsetting benefits. As a result, state courts will not look at a person’s Social Security benefits when determining how to divide marital property upon divorce.

Although federal law prohibits the division of Social Security benefits as marital property, state laws may still factor Social Security when determining the financial conditions of the parties for purposes of calculating spousal or child support obligations. This does not indirectly divide Social Security, but instead serves as a basis for determining whether a spouse does or does not have adequate financial resources to live at the marital standard of living after divorce.

When Social Security Benefits are Accessible to the Other Spouse

A married person is entitled to collect Social Security benefits based on their spouse’s individual contributions through employment. The ability of a spouse to collect Social Security benefits from their spouse is known as “spousal benefits.”

When a couple gets divorced, they remain eligible to collect spousal benefits in the following circumstances:

  • The parties were married for ten years or longer
  • The parties are no longer married
  • The party seeking to collect spousal benefits is at least 62 years old
  • The party from whom the collection of spousal benefits is sought is eligible for Social Security retirement or disability
  • The party seeking to collect spousal benefits would receive less in benefits from their own Social Security plan than from their spousal benefit

As a result, Social Security spousal benefits are among the few methods of accessing the Social Security benefits of your ex.

Significantly, if you want to collect spousal benefits from your ex’s Social Security, the requirement that you are no longer married broadly applies. Thus, if you subsequently remarry after your divorce, you are no longer entitled to spousal benefits from your ex’s Social Security.

However, if you remain unmarried and your marriage lasted for ten years or more, you can still collect your spousal benefits—even if your ex passes away. This type of benefit is known as Social Security “survivor’s benefits.”

To Learn More, Contact Hope Law Firm

Financial issues in a divorce case can be very challenging to navigate without the help of an experienced attorney. If you have questions or concerns about your property rights in a divorce case, you can count on our attorneys at Hope Law Firm.

To arrange for an initial consultation about your case, call Hope Law Firm at (515) 305-2772 or contact our office online today.