Social Security Benefits and Divorce

Social Security Card and Statements

In general, legal issues connected to marriage and divorce are governed by state law. For example, when a couple gets divorced, courts will look to the state’s family law code and other state laws to resolve most issues concerning the division of property, alimony, and child support.

In contrast, federal law primarily governs Social Security matters, including an individual’s entitlement to social security benefits. This article looks at the intersection between state family law and federal law concerning Social Security, and when someone can reach another’s social security benefits to satisfy certain obligations that arise from a divorce, such as alimony, child support, and property division.

Dividing Social Security Benefits Upon Divorce

In a divorce, the marital property owned by the couple is divided between them. In Florida, property division issues in a divorce are governed by principles of “equitable distribution.”

All property acquired by the couple during their marriage qualifies as marital property subject to equitable distribution upon divorce. This means that the court will split all marital property between the parties in a just manner, not necessarily implying an equal division.

In contrast, property that an individual party acquired before marriage or after divorce is considered to be their separate nonmarital property and is not subject to equitable distribution.

Federal law exempts social security benefits from state laws governing the distribution of marital property upon divorce. Title 42 of the United States Code governs Social Security matters. 42 USC § 407 states that “the right of any future payment under this title…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…shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.”

Thus, federal law generally protects a person’s social security benefits by placing it out of reach of creditors. Furthermore, federal courts have held that social security benefits are not property the same way pension benefits are considered property. Instead, social security benefits are more like insurance proceedings from a government-run system of social insurance.

However, courts have held that social security replacement plans may be divided as marital property upon divorce if the replacement plan is different enough from the federal social security system. When a person receives partial benefits from their spouse’s social security replacement plan, that person’s future social security benefits may not be offset in that amount, indicating that social security benefits are not divisible directly or indirectly through offsets.

Social Security Benefits and Alimony

In general, spouses owe a duty to provide each other with adequate financial support. When the couple gets divorced, they are no longer in a marital relationship from which the duty to pay spousal support previously arose. Instead, a person’s right to receive financial support depends on their specific needs and the other spouse’s ability to pay.

If a person proves that they are financially incapable of supporting themselves after divorce at the standard of living they enjoyed while married, they are entitled to alimony to the extent the other spouse can pay.

Florida courts calculate the amount of alimony owed after considering the respective financial conditions of the parties, including all sources of income. The ultimate alimony award can be seen as a percentage of one’s income.

Unlike marital property, social security benefits may be reached for purposes of satisfying an alimony obligation. When assessing a party’s ability to pay alimony, they will factor in any source of income available to them, including social security benefits.

Social Security Benefits and Child Support

Generally, parents have a duty to provide their children with sufficient financial resources to cover their needs, including food, clothing, housing, education, and health care. Unlike alimony, a person’s responsibility for paying child support does not derive from the marital relationship, but rather the parent-child relationship. Therefore, divorce does not extinguish a person’s duty to financially support their children.

In Florida, the amount of one’s child support payments is calculated according to certain statutory guidelines that also factor in income. Florida Statutes § 61.30(2)(a) provides that a party’s “gross income”—for purposes of determining what they owe in child support—includes their “social security benefits.”

However, certain expenses are deductible from a person’s gross income to determine their “net income”—the amount from which the court will ultimately base its child support orders.

Reach out to The Virga Law Firm, P.A. for Quality Legal Representation

Are you looking for an experienced legal professional to help you with a legal dispute concerning Flordia family law? If so, you should reach out to one of our experienced family lawyers from The Virga Law Firm, P.A.

For more information, contact The Virga Law Firm, P.A. online or call our office at (800) 822-5170 today.

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