Nothing in divorce is as simple as it may seem at first. This is just one of the reasons it is vital to seek good financial and legal advice during the divorce process. Social security is an example of how what seems simple can be a very complicated discussion in divorce. Consider the question:
Can social security benefits be transferred or split in the context of a divorce?
The simple answer is no.
The more complicated answer is that while the benefit itself cannot be transferred, social security provides benefits for divorced spouses in certain circumstances, and many courts have also ruled that the amount of a social security benefit can affect other provisions. For example, in Massachusetts, the Mahoney v Mahoney case found that the court could take into account the social security benefit owed the husband in the case in determining the fair distribution of the wife’s pension.
In Mahoney, the trial judge granted the woman a greater portion of her retirement pension, taking into account the husband’s social security benefit. The Supreme Court upheld that ruling, confirming that the court could not divide it up as a marital property, but at the broad discretion of a “fair” property division in Massachusetts, the court was able to adequately account for that income stream. It follows that the court could also take social security benefits into account when determining maintenance. However, under the Maintenance Reform Act, the court must deviate from this in order to extend maintenance beyond the full social security retirement age. This is therefore less likely than an unequal division of wealth. Differences in social security benefits.
Of course, it is not always easy to determine the amount of a social security benefit. For more information on this issue, see the following resources:
Receive your social security statement
Check social security benefits for divorced spouses
Review possible social security cuts due to retirement benefits
In divorce mediation and collaborative divorces, we encourage clients not to make decisions until they are fully informed. In determining an appropriate allocation of retirement accounts, particularly pensions, it is important that you also have relevant information about your potential social security benefits so that it can be part of the discussion about an equitable allocation.
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