Social Security Consideration as a Property Division Factor
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The majority rule is that state courts may consider Social Security benefits as a factor in dividing other marital property. See In re Marriage of Crook, 334 Ill. App. 3d 377, 778 N.E.2d 309 (2002); In re Boyer, 538 N.W.2d 293 (Iowa 1995); In re Miller, 475 N.W.2d 675 (Iowa Ct. App. 1991); In re Pratt, 489 N.W.2d 56 (Iowa Ct. App. 1992); Crace v. Crace, 396 N.W.2d 801 (Iowa Ct. App. 1986); Gross v. Gross, 8 S.W.3d 56 (Ky. Ct. App. 1999); Pleasant v. Pleasant, 97 Md. App. 711, 632 A.2d 202 (1993); Mahoney v. Mahoney, 425 Mass. 441, 681 N.E.2d 852 (1997) (where husband received substantial Social Security benefits, proper to award wife 58% of the marital estate); Pongonis v. Pongonis, 606 A.2d 1055 (Me. 1992); Elliott v. Elliott, 274 N.W.2d 75 (Minn. 1978); David v. David, 954 S.W.2d 611 (Mo. Ct. App. 1997); Mistler v. Mistler, 816 S.W.2d 241 (Mo. Ct. App. 1991); Hogan v. Hogan, 796 S.W.2d 400 (Mo. Ct. App. 1990); Rudden v. Rudden, 765 S.W.2d 719 (Mo. Ct. App. 1989); Neville v. Neville, 99 Ohio St. 3d 275, 791 N.E.2d 434 (2003); In re Marriage of Zahm, 91 Wash. App. 78, 955 P.2d 412 (1998). The majority rule is consistent with case law permitting consideration of other types of federally preempted benefits as a factor in dividing the marital estate. See generally Turner, supra, 6.05 nn.105 et seq.
A small minority of cases refuse to consider Social Security even as a division factor. See Cox v. Cox, 882 P.2d 909 (Alaska 1994) (Social Security benefits are not a division factor; predicting their future amount would be unreasonably speculative); Wolff v. Wolff, 112 Nev. 1355, 929 P.2d 916 (1996) (Social Security benefits are not a division factor; divided decision over a strong dissent); Olson v. Olson, 445 N.W.2d 1, 13 n.14 (N.D. 1989) (over a strong dissent); In re Swan, 301 Or. 167, 720 P.2d 747 (1986).
When looking at the use of Social Security as a division factor, it is important to distinguish between general consideration as a division factor and entry of a monetary award equal to a specific percentage of the preempted benefits. The Supreme Court has indicated that a monetary award is not materially different from the direct division of preempted benefits. "[I]t is clear that the injunction against attachment is not to be circumvented by the simple expedient of an offsetting award." McCarty v. McCarty, 453 U.S. 210, 230 n.22 (1981). "[S]ocial security is not subject to adjustment by state courts, even indirectly by offset." Olson v. Olson, 445 N.W.2d 1, 7 (N.D. 1989). When benefits are considered as a division factor, the amount of the division is not specifically tied to some percentage of the benefits; rather, the benefits are merely being considered as one general equitable factor in determining the percentage of the marital estate to be awarded to each spouse.
Of course, the court cannot consider Social Security as a division factor unless the record contains sufficient evidence of what the likely benefits will be. See Guziak v. Guziak, 80 Ohio App. 3d 805, 610 N.E.2d 1135 (1992) (proper to give no weight to Social Security as a division factor, where there was little evidence on the amount of expected benefits); cf. Turner, supra, 8.10 (tax consequences need not be considered unless there is specific evidence of what the tax consequences will be).
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