As more and more individuals near retirement, "grey divorces" are statistically on the rise. In essence, a "grey divorce" is simply a couple that decides to divorce after the age of 40. And, since the rise of these type of divorces, the issue as to whether Social Security benefits are considered marital property seems to be a common question asked in these type of divorce consultations.
In short, the answer is a little more complex than a simple "no." The Social Security Act provides an explicit benefit plan and scheme by which divorced spouses may be entitled to a portion of their former spouse's benefits (research surviving divorced spouse benefits). Additionally, the Social Security Act includes an anti-alienation clause providing that all future payments shall not be transferrable or assignable and that all moneys paid or payable shall not be subject to garnishment, levy, etc.
So, does this mean family court judges simply ignore your Social Security benefits? Again, the answer here is also a little more complex than a simple "no." In Kentucky, and in many other states, the courts have determined that while the trial court may not value and include Social Security benefits in the couple's marital estate, the court may consider a spouse's anticipated Social Security benefits as one factor, among many, in dividing the overall marital estate.
Simply stated, mere consideration of non-prospective Social Security benefits in formulating a division of marital property is not preempted by federal law because mere consideration of the benefit does not constitute a transfer, assignment, or other legal process as prohibited by the anti-alienation provisions of the Social Security Act.
You might be wondering when this might become an issue in your divorce. One example - an individual is receiving Social Security benefits and making a claim to maintenance (alimony) during your divorce. Another example - an individual is seeking an equalization lump-sum payment but will receive Social Security benefits in the near future.
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