Are Your Social Security Benefits Safe in a Divorce?

What Benefits Does Social Security Provide?

Social Security is a government social welfare program that provides retirees and disabled individuals with financial assistance. Individuals who reach the legal retirement age—as articulated by federal law—are entitled to receive financial benefits to supplement or replace their income. Additionally, individuals with qualifying disabilities may receive Social Security benefits to compensate them for the reduced earning ability resulting from their disability.

In addition to individual retirement and disability benefits, Social Security offers benefits to an individual’s spouse. A person is entitled to receive up to 50% of their spouse’s Social Security benefits. This is known as “spousal benefits.”

To be eligible for Social Security spousal benefits, the spouse from whom the spousal benefit is sought must be eligible to receive Social Security benefits. Moreover, former spouses may still be entitled to spousal benefits despite getting divorced. However, the couple must have been married for at least 10 years before any one of them can receive spousal benefits.

Current and former spouses are also entitled to receive benefits even if their spouse passes away. This is known as “survivor’s benefits.” Importantly, if the surviving spouse subsequently remarries, they may be no longer eligible for survivor’s benefits.

Are Social Security Benefits Divisible Community Property?

The assets and property of a married couple are divided between them in a divorce case. In Texas, courts will perform a just and right division of community property when a couple gets divorced. “Community property” includes all assets that the couple acquired during their marriage.

The kind of property that may be classified as community property and divided accordingly in a divorce case is broad, encompassing real estate, tangible personal property, income, and financial assets.

However, the distribution of property upon divorce is primarily governed by state law, whereas Social Security benefits are governed by federal law.

Under federal law, Social Security benefits may not be divided as community or marital property upon divorce. Unlike other assets, a person does not “buy” Social Security benefits or otherwise acquire them in a transaction. Courts have held that Social Security benefits are a legal entitlement, and therefore are exempt from the property division process in divorce proceedings.

Is Social Security Included When Determining Maintenance and Child Support?

Although Social Security benefits are not treated as property that is subject to a court’s determination as divisible community property, it may be considered when determining matters involving spousal maintenance and child support.

In Texas, a court may order a person to provide financial assistance from their future earnings to their former spouse if they lack adequate resources to cover their reasonable living expenses. When determining the amount of spousal maintenance, courts will look at the respective financial resources and obligations of the parties.

If a person’s income and assets are insufficient to cover their reasonable needs after getting a divorce, a court may order their spouse to provide financial assistance to help make up for the difference. The court will also base support payments on the other spouse’s ability to pay, factoring their own sources of income and wealth.

Under Texas law, Social Security benefits are considered a source of income, which courts include when calculating spousal maintenance and child support orders. For the spouse receiving support, the fact that they receive Social Security benefits will reduce what they receive from their former spouse. When the court is determining if the other spouse has enough resources to pay support, they will include their Social Security benefits as a source of income.

Contact Kay Polk, Attorney at Law for More Information

Do you need legal advice concerning a matter involving Texas family law? If so, you should get in touch with Kay Polk, Attorney at Law. Since 2000, Attorney Kay Polk has handled various family law cases, including divorces involving sophisticated financial issues.

Please call Kay Polk, Attorney at Law at (713) 234-6260, or complete this online request form to schedule an initial consultation about your family law dispute today.