Social Security and Divorce. There are multiple facets to this issue, and 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. We also wrote a blog post on the issue of social security for family support.
Now it’s time to discuss another part of the issue – the potential division of Social Security and divorce. Are Social Security payments divisible as a marital asset? The short answer is “no”, and for a complete discussion, read our new article Dividing Social Security at Divorce.
Federal Law on Social Security and Divorce
An anti-alienation provision in federal law prohibits SS 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 in a dissolution of marriage proceeding.
Nor can the family law court do an end-run around the prohibition on dividing social security in a divorce by treating the payments as an asset awarded 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. After 10 years of marriage, they may be entitled to a separate payment equal to one-half of the employee spouse’s SS payments. This is not a division of the employee spouse’s share, but a separate payment to the former spouse in addition to what the employee spouse receives.
Finally, courts can also treat Social Security as an “economic circumstance,” and when dividing the marital property can give the former spouse at least some consideration for the fact that the employee spouse will be receiving monthly payments. It just cannot be a dollar-for-dollar offset.
FAQ – Social Security and Divorce
How does Social Security work in a divorce?
After a divorce, one spouse’s Social Security benefits count as income for purposes of calculating child support and alimony. Additionally, if the couple was married for at least 10 years, then a spouse will receive the higher of (1) her own Social Security entitlement, or (2) an additional payment equal to one-half of the employee spouse’s entitlement.
How much Social Security does an ex spouse get?
If a couple was married for at least 10 years prior to divorce, then a former spouse will receive the higher of (1) his own Social Security entitlement based upon his own career, or (2) an additional payment equal to one-half of the employee spouse’s entitlement.
Can I collect Social Security from my ex husband and mine accounts?
No. When a couple divorces after at least 10 years of marriage, the former spouse has the option of receiving either (1) her own Social Security benefits based upon her own employment, or (2) an amount equal to one-half of the other spouse’s benefits, but not both.
Can my ex spouse reduce my Social Security benefits?
No. If a couple has been married for at least 10 years prior to a divorce, then a former spouse is entitled to receive a payment from the Social Security administration equal to one-half of the employee spouse’s payment. This additional payment is not deducted from the employee spouse’s payments, but is an additional payment.
How to change social security card after divorce?
If a spouse has a name change as part of the divorce decree, apply for a new Social Security card using the SS-5 form (available here: https://www.ssa.gov/forms/ss-5.pdf), and submitting the divorce decree and photo ID.
Award-Winning Colorado Social Security and Divorce Lawyers
U.S. News & World Report calls Graham.Law one of the Best Law Firms in America, and our managing partner is a Colorado Super Lawyer. Our family law attorneys have years of experience helping clients navigate the Colorado legal system. We know Colorado divorce & family law inside and out, from complex multi-million dollar property or child custody cases to basic child support modifications.
For more information about our top-rated El Paso County family law firm, contact us by filling out our contact form, calling us at (719) 630-1123 to set up a free consult, or click on:
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- Colorado Family Law Guide. The internet’s most comprehensive resource for attorneys and clients alike.
- Military Divorce Guide. Addresses specialized family law issues that arise when one spouse is in the military.
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