INFO - More on divorce and Social Security benefits

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" The treatment of Social Security benefits in the allocation of

marital assets after In Re Marriage of Crook: Neither divide nor

consider "

By Cecilia Hynes and Tricia A. Rooney

Originally Published in Family Law: The Newsletter of the ISBA's

Section on Family Law, October 2004,

Vol. 48, No. 1

Excerpt:

II. The Law

A. Under federal law, courts cannot divide Social Security benefits

The plain language of the Social Security Act forbids the division of

social security benefits between two divorced spouses. 42 U.S.C. ss

407(a), 13041. In Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802

(1970), a case involving the allocation of railroad retirement

benefits pursuant to a property division in divorce, the United States

Supreme Court discussed the anti-assignment clause of the Railroad

Retirement Act. The Court held that the clause prevents the assignment

of railroad retirement benefits to the ex-spouse of a benefit

recipient. Hisquierdo, 439 & .S. at 584-91, 99 S.Ct. at 810-13. The

Court's opinion analogized to the Social Security Act, indicating that

the Social Security Act also forbids a division of social security

benefits in order to pay a divorced spouse. 439 U.S. at 575-77, 99

S.Ct. at 805-06. The Hisquierdo Court also noted that the Social

Security Act's prohibition against division has two narrow exceptions

for payments made to satisfy alimony or child support obligations,

further indicating that any other attempts to assign benefits to a

non-beneficiary were forbidden2. 439 U.S. at 576-77, 99 S.Ct. at

805-06. There has been little confusion since Hisquierdo, therefore,

about the force of the Social Security Act's prohibition against

division of social security benefits for the benefit of a divorced

spouse. Such a division is forbidden.

Despite the prohibition, courts have struggled with the inequities

created by the statutory bar against dividing benefits, and they have

attempted to find ways to resolve those inequities. In Illinois, the

caselaw following Hisquierdo maintained a strict prohibition on

dividing such benefits, but evolved to not only permit, but sometimes

require a court to consider one party's future receipt of social

security benefits pursuant to its determination of a just and

equitable division of other marital property that leaves both parties

financially secure. See, e.g., In re the Marriage of Benz, 165 Ill.

App. 3d 273, 287-88, 116 Ill. Dec. 336, 344, 518 N.E.2d 1316, 1324

(Ill. App. Ct., 4th Dist., 1988) (appellate panel did not disapprove

of trial court's consideration of social security benefits).

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Read more here:

http://www.griffinmccarthylaw.com/socialsecurity.htm

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