Social Security Benefits in Divorce

In Divorce nothing is as simple as it may seem at first. This is just one of the reasons it's vitally important to obtain good financial and legal advice during the divorce process. Social Security is an example of how something that seems simple can actually be a very complicated discussion in divorce. Consider the question:

Can Social Security benefits be transferred or divided as part of a divorce?

The simple answer is no.

The more complicated answer is that while the benefit itself cannot be transferred, Social Security does provide for benefits for divorced spouses in certain circumstances, and many courts have also ruled that the amount of a Social Security benefit can affect other determinations. For example, in Massachusetts the case of Mahoney v. Mahoney, held that the court could consider the Social Security benefit owed to the husband in that case when determining the equitable division of the wife's retirement benefit.

In Mahoney, the trial Judge awarded the wife more of her retirement benefit taking the husband's social security benefit into account. The Supreme Judicial Court affirmed this decision confirming that the court couldn't divide it as a marital asset, but under the broad discretion for "equitable" division of assets in Massachusetts, the court could properly consider that income stream. It would follow that the court could also consider social security benefits in determining alimony, however under the Alimony Reform Act the court must deviate to extend alimony beyond full social security retirement age, so this is less likely than an unequal division of assets to account for differences in Social Security benefits.

Of course, determining the amount of a social security benefit is not always easy. For additional information on that issue review the following resources:

Obtain your Social Security Statement

Review the Social Security Benefits available for Divorced Spouses

Review potential reductions to Social Security due to Pension Benefits

In divorce mediation and collaborative divorces, we encourage clients to not make any decisions until they are fully informed. When determining an appropriate division of retirement accounts, especially pensions, it is important to make sure you also have any relevant information about your potential social security benefits so they can be part of any discussions about equitable division.

Comments

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be...

2024 U.S. Presidential Party Platforms - What are the policy positions that could affect families?

While the laws that affect family formation, marriage and divorce are often made at the state level, there are also many policies and laws at the federal level that affect families and children. Just some examples from recent years that have impacted families in my mediation practice include changes to the federal tax laws (such as the elimination of the alimony tax deduction ) and U.S. Supreme Court rulings on same sex marriage and reproductive health rights. In just over a month, the United States presidential election will have a significant impact on these federal policies going forward, and could choose the next appointments to the U.S. Supreme Court as well. In 2016 and 2020 we shared what each presidential platform said about families and policy regarding family formation and dissolution, and below we'll provide you an update on the 2024 presidential platforms. As Maya Angelou said, "When someone shows you who they are, believe them the first time."...

Updating your Divorce Agreement Template - More Lessons from Cavanagh v. Cavanagh

We recently posted a lengthy review of the the Massachusetts SJC decision in Cavanagh v. Cavanagh (2002) which included some recommendations for drafting divorce agreements, also typically called Separation Agreements. The Cavanagh case is best known for it's clarification of how the courts should evaluate support calculations when a case may have both alimony and child support. However, the case also contained numerous rulings that should make practitioners review their Separation Agreement templates and change some of the ways in which they may have previously drafted certain sections. In this post we'll share actual language from the Gray Jay Endeavors, LLC form Separation Agreement template which addresses each of the issues raised by the Cavanagh decision. If you are a professional interested in purchasing the full Separation Agreement template, check out Gray Jay's forms subscription which includes editable Massachusetts court forms and financial st...

Search This Blog