Social Security provides two types of benefits: retirement and disability. Each of these benefits may be received by the insured individual, his or her spouse and children. Social Security is not an annuity; rather it is "a form of social insurance" that animates a social contract between the generations wherein workers who make contributions today receive benefits tomorrow.

In a divorce, the receipt of Social Security by a husband, wife of child may have an impact on the financial issues of spousal and child support and property distribution.

Social Security benefits are not a vested right, and they are not transferable. They may not be garnished, attached or levied (except to permit spousal and child support). They are the separate property of the recipient spouse and are not divisible in a divorce as either marital or community property. Under certain conditions, however, a divorcing spouse (very often the woman) may receive spousal Social Security based on the work history of her spouse.

While the benefits themselves are not divisible marital or community property, courts consider their recipient for equitable distribution purposes, that is, to achieve an "equitable, but not necessarily equal, division of marital property..." Some courts consider Social Security as a "relevant factor" in spousal support.

Moreover, an agreement "that merely uses Social Security as a measure of a spouse’s payment obligation, without subjecting the benefits to legal process or transferring the receipt or control of the benefits to the other spouse "... does not violate the antiassignment provision of Social Security. A spouse can share his benefits by calling it alimony.

For purposes of spousal and child support, Social Security benefits are income to the obligor spouse or parent, and the courts treat this income as such. However, these benefits are income only when they are received.

When a minor child receives old age or disability payments as a result of the retirement or disability of the noncustodial parent, courts treat these payments in one of three ways: 1) dollar-for-dollar credit for the benefit against the obligation; 2) no credit for the benefit; or 3) consideration of the benefit in determining the child’s needs. Many states credit the payor, dollar-for-dollar, because the Social Security benefits are substitute for income he or she would otherwise have paid as a support obligation.

See Spousal Social Security.

Your Suggestion