Divorce Support Forums: Social Security disability

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"If i was to get back pay from social security (3 yrs) Disability, is that money considered community property subject for division? Just my portion not the kids.

>>>>>>>>>>Depends on the state you live in .
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From:
http://www.divorcesupport.com/divorce/Classification-of-Social-Security-as-Marital-3150.html

"The overwhelming consensus holding of the state courts, under Fleming and by analogy to Mansell, McCarty, and Hisquierdo, is that federal law preempts state community property and equitable distribution law and prevents direct division of Social Security benefits upon divorce. See Mann v. Mann, 778 P.2d 590 (Alaska 1989); Wisner v. Wisner, 129 Ariz. 333, 631 P.2d 115 (Ct. App. 1981); In re Hillerman, 109 Cal. App. 3d 334, 167 Cal. Rptr. 240 (1980); Sherry v. Sherry, 108 Idaho 645, 701 P.2d 265 (Ct. App. 1985); In re Marriage of Crook, 334 Ill. App. 3d 377, 778 N.E.2d 309 (2002); In re Hawkins, 160 Ill. App. 3d 71, 513 N.E.2d 143 (1987); In re Evans, 85 Ill. App. 3d 260, 406 N.E.2d 916 (1980); In re Boyer, 538 N.W.2d 293 (Iowa 1995); In re Knipp, 15 Kan. App. 2d 494, 809 P.2d 562 (1991); Gross v. Gross, 8 S.W.3d 56 (Ky. Ct. App. 1999); Thibodeaux v. Thibodeaux, 712 So. 2d 1024 (La. Ct. App. 1998) (Social Security disability); Pleasant v. Pleasant, 97 Md. App. 711, 632 A.2d 202 (1993); Rudden v. Rudden, 765 S.W.2d 719 (Mo. Ct. App. 1989); Koziol v. Koziol, 10 Neb. App. 675, 636 N.W.2d 890 (2001); Wolff v. Wolff, 112 Nev. 1355, 929 P.2d 916 (1996); English v. English, 118 N.M. 170, 879 P.2d 802 (Ct. App. 1994); Thomas v. Thomas, 221 A.D.2d 621, 634 N.Y.S.2d 496 (1995); Cruise v. Cruise, 92 N.C. App. 586, 374 S.E.2d 882 (1989); Kluck v. Kluck, 561 N.W.2d 263 (N.D. 1997); Olson v. Olson, 445 N.W.2d 1 (N.D. 1989); Neville v. Neville, 99 Ohio St. 3d 275, 791 N.E.2d 434 (2003); Crocker v. Crocker, 824 P.2d 1117 (Okla. 1991); Umber v. Umber, 591 P.2d 299 (Okla. 1979); In re Marriage of Short, 155 Or. App. 5, 964 P.2d 1033 (1998); In re Swan, 301 Or. 167, 720 P.2d 747 (1986); Powell v. Powell, 395 Pa. Super. 345, 577 A.2d 576 (1990); Kirk v. Kirk, 577 A.2d 976 (R.I. 1990); Richard v. Richard, 659 S.W.2d 746 (Tex. App. 1983); In re Marriage of Zahm, 91 Wash. App. 78, 955 P.2d 412 (1998); Loudermilk v. Loudermilk, 183 W. Va. 616, 397 S.E.2d 905 (1990). See generally Laura W. Morgan, The Effect of Social Security Benefits on Divorce Cases, 5 Divorce Litigation 209 (1993).

Two decisions hold that federal law does not even allow state courts to enforce a purely contractual division of Social Security benefits. See Gentry v. Gentry, 327 Ark. 266, 938 S.W.2d 231 (1997); Boulter v. Boulter, 113 Nev. 74, 930 P.2d 112 (1997).

A few decisions hold that Social Security benefits are separate property under state law, without considering federal preemption. These cases reach the right result, but fail to acknowledge a crucial issue. See Mason v. Mason, 319 Ark. 722, 895 S.W.2d 513 (1995); Cooper v. Cooper, 143 N.C. App. 322, 545 S.E.2d 775 (2001).

Scattered decisions hold that Social Security benefits are marital property under state law, without expressly addressing federal preemption. See In re Marriage of Gilmore, 943 S.W.2d 866 (Mo. Ct. App. 1997); Traxler v. Traxler, 730 So. 2d 1098 (Miss. 1998); Murphy v. Murphy, 797 So. 2d 325 (Miss. Ct. App. 2001); Wiercinski v. Wiercinski, 116 A.D.2d 789, 497 N.Y.S.2d 179 (1986). All of these holdings are highly questionable. Gilmore is particularly questionable in light of Rudden v. Rudden, 765 S.W.2d 719 (Mo. Ct. App. 1989), which recognized preemption.

Significantly, no state court appellate decision which has addressed the federal preemption issue has ever concluded that federal law permits the direct division of Social Security benefits in divorce cases.

Past Benefits. At least one state court decision holds that past benefits deposited into a bank account or other clearly identifiable source continue to be exempt from division. Kluck v. Kluck, 561 N.W.2d 263 (N.D. 1997). Conversely, where the benefits were commingled with other property and could not be traced, another court found that the past benefits were not exempt. See In re Marriage of Box, 968 S.W.2d 161 (Mo. Ct. App. 1998). For cases applying these two rules to other types of benefits preempted by federal law, see Brett R. Turner, Equitable Distribution of Property 6.05 nn.110-111 (2d ed. 1994 & Supp. 2002)."

Notice the wording, "federal law preempts state community property and equitable distribution law and prevents direct division of Social Security benefits upon divorce"

Unless someone imagines that this refers to future benefits being distributed under "equitable division" or "community property" law (absurd) then it must refer to all accumulated past benefits. In any case such benefits are not even considered "property".

The trial court can do whatever it wants but, as I said, the appeals court has to disallow any distribution of your social security benefits. Note, however, that this does not mean the court may not award more of your other assets in lieu of being able to award your social security benefits to her. This is a little trickier problem, and although this kind of sham should also be overturned on appeal, there are a number of asset protection vehicles available. I, personally, first spend all of my non-exempt income as soon as I can. In your case you should make sure that anything you pay in CS, etc., comes from your non-exempt assets.

Edited by jbar (04/26/08 05:58 PM)