When two people go through a divorce, there are important and difficult questions about who gets what. Who gets the money? Who gets the house? Who gets the kids, the dogs and the cat? In many cases, the questions are answered easily. Without a prenuptial agreement between two parties, most property acquired during the marriage becomes community property. Community property is owned jointly by the spouses, meaning that a divorce will lead to a split in this property. There is also the issue of alimony, which is where questions about Social Security benefits tend to come in. Can a judge make a soon-to-be ex-husband hand over a part of his Social Security benefits in alimony? The short answer is “no,” but it’s more complicated than that.
Social Security benefits and protection from legal process
The Social Security system was designed to be a social safety net. By this, it means that the federal government wanted the program to be there to make sure that older people did not starve when they got done working. What this means practically is that the government designed the system in such a way that the benefits are difficult to tie up in a legal process. They are exempt from garnishment and levy in most cases. They cannot be encumbered in a divorce proceeding, either. An ex-wife will likely not be entitled to a portion of these benefits after divorce.
Social Security benefits are also considered separate property in a marriage. While it is very easy for this money to be co-mingled into the couple’s other finances during the course of a marriage, those people who have the willpower to keep their Social Security in a separate, verifiable account will often find that the benefits remain with them after divorce. Consider the case of Joe the Plumber. Joe is 71 years old and his wife is trying to divorce him. He happened to open up a Chase account just for his Social Security checks. That is his property, and he may be able to protect it in a divorce proceeding.
Claiming Social Security benefits on the basis of a spouse
There are different rules for whether spouses can continue to collect their own Social Security on the basis of their spouse’s work. In the old days, when many women did not work, the system was designed so that those women could still receive Social Security benefits on the basis of the contribution of their husbands to the system. The idea was that women were an important part of the process, since their ability to run the home allowed the husband to go out and earn. If you happen to get divorced, spouses may still be able to claim Social Security on the basis of an ex-spouse’s status.
In order for this to happen, the marriage must have been ten years or more in duration. This will provide the exception necessary to ensure proper payment of benefits. The ability of an ex-wife to cash in on these benefits does not impact the Social Security benefit status of the ex-husband, however.