Last week, we added an article to the Colorado Family Law Guide explaining how Social Security may be treated as income at divorce for the purposes of calculating alimony and child support.
Now it’s time to discuss the other side of the issue – are Social Security payments divisible as a marital asset? The short answer is “no”, but for a complete discussion, read our new article Dividing Social Security at Divorce.
An anti-alienation provision in federal law prohibits Social Security Payments from being assigned. That means that creditors cannot touch them (except to garnish child support or maintenance), and it also means that state courts cannot divide the payments as assets.
Nor can the court treat the payments as an asset, award them to the employee spouse, and then give the other spouse offsetting assets to make up for it. Even though the Social Security is not technically being divided, using this tactic ends up treating it as a marital asset, which courts are prohibited from doing.
Former spouses are not necessarily totally shut out of Social Security. After 10 years of marriage, they may be entitled to a separate payment equal to one-half of the employee spouse’s Social Security payments.
Finally, courts can also treat Social Security as an “economic circumstance,” and give the former spouse at least some consideration for the fact that the employee spouse will be receiving monthly payments. It just cannot be dollar-for-dollar.