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How Are Social Security Benefits Divided in a Divorce?


Dividing property during divorce proceedings is a particularly contentious matter. The parties in a divorce typically spend a significant amount of time on property division issues. Most people understand that real estate and personal property, such as cars, jewelry, and collectibles, are divided between the spouses upon divorce. Furthermore, financial accounts, investments, and certain retirement plans are subject to division upon divorce.

However, what are the rules for dividing Social Security benefits? The interaction of state property division laws and federal law governs how Social Security benefits are divided upon divorce. In California, the rules of community property generally govern how assets are divided during divorce proceedings.

California’s Community Property Rules

Under California’s community property system for dividing property in a divorce, all assets and property in the marital community estate are equally divided between the parties. All property acquired during divorce constitutes community property unless evidence demonstrates that a particular asset or item of property qualifies as the party’s separate property. Property that a party receives before getting married and after separation pending divorce is their sole and separate property. Additionally, all property a party acquired during marriage through gift or inheritance is their separated property.

Dividing Social Security Benefits

Under federal law, an individual’s right to receive future Social Security benefits is not transferable or assignable. In fact, the U.S. Congress expressly exempted Social Security from state community property laws. Under 42 USCS § 659, Social Security benefits exclude transfers of property from one spouse to another “in compliance with any community property settlement, equitable distribution of property, or other property between spouses or former spouses.”

Federal law also does not grant offsets of Social Security benefits against divisible community property interests. As a result, Social Security benefits are considered to be a party’s separate property and are not subject to division upon divorce.

The treatment of Social Security Benefits strictly applies even in situations involving state or local pension plan benefits received instead of Social Security benefits. For example, where one spouse contributes to Social Security during marriage, and the other spouse participates in a state or local pension plan instead of Social Security, California courts will equally divide the pension plan benefits between the parties. However, since Social Security benefits must remain the separate property of the payor, the spouse with the government pension only receives half of those benefits and none of the other spouse’s Social Security benefits.

Get Comprehensive Legal Advice from Gille Kaye Law Group, PC

If you are going through a divorce, it is in your best interest to consult an attorney with experience handling matter such as property division under California’s community property rules. At Gille Kaye Law Group, PC our legal team has decades of collective legal experience between attorneys, some of whom are Certified Family Law Specialists per the California State Bar Association Board of Legal Specialization. We are committed to providing effective and compassionate legal advice to help ensure you and your family’s rights are properly recognized and respected.

To arrange for an initial, confidential consultation about your rights, call us at (626) 340-0955 or contact us online today.

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