Social Security Benefits

Federal law (42 U.S. Code §407(a)) prohibits states from dividing Social Security benefits. In In re: the Marriage of Morehouse, the Colorado Court of Appeals ruled that Social Security benefits are not marital property which can be divided. The divorce court had put a value on the husband's right to receive social security, and awarded the wife extra marital property to compensate her for the value of the husband's anticipated social security benefits. Awarding a spouse the exact present value of social security benefits constituted an improper offset of the social security benefits, which was tantamount to dividing the social security itself.

The court did not prohibit Colorado divorce courts from considering the right to receive social security benefits entirely. On the contrary, the potential that one spouse may have a financially secure retirement is a "relevant economic circumstance" a trial court may consider when trying to fashion an equitable division of property, similar to one spouse receiving an inheritance or having a greater earning capacity. This means that while a dollar-for-dollar offset is impermissible, Social Security benefits are not entirely invisible to a Colorado divorce court.

A spouse who is not otherwise entitled to Social Security can receive social security benefits on his/her former spouse's record as long as the claimant spouse was married to that spouse for at least 10 years, is at least 62, and is unremarried (a remarriage terminated by death, divorce or annulment generally restores that spouse's entitlement).

More Information

Social Security Administration web site.