Divorce and Social Security Benefits

How Does Divorce Affect Social Security?

Imagine Mary and Tom have been married for 9 years and 11 months, and Tom is considering divorce in Utah.  During the marriage, Mary has paid into Social Security, while Tom has been at home taking care of the garden, among other things.  Assuming Tom files for divorce, will he be able to collect on Mary’s Social Security?

In divorce proceedings, marital assets are divided between the parties.  Utah law defines marital assets as “functionally… any right that has accrued during the marriage to a present of future benefit.”[1]. The courts will use the “Woodward Formula” to determine the applicable division of the marital assets, specifically, retirement assets [2].   This formula is based on “the marital property subject to distribution is a portion of the retirement benefits represented by the number of years of the marriage divided by the spouse’s employment… the other spouse is entitled to a one-half of that portion.”

The Social Security Act 

An issue arises under the Social Security Act, though, because “[t]he right of any person to any future payment under this title shall not be transferable or assignable . . . .”[3] (emphasis added).

According to the Act, which is federal law and up the food chain from state law, it would be against the law to divide or transfer future rights to payment.  However, out of a concern that Social Security recipients would skip out on child support payments, Congress authorized an exception to this prohibition against the transfer or assignment of Social Security benefits.  The exception now allows the transfer for the collection of child support and alimony.  Subsequently, following several lawsuits on the matter, the United States Supreme Court upheld the exception. [4]. 

Determining Factors To Collect Social Security

To collect Social Security from an ex-spouse, the following 4 factors must be met:

  1. The spouse seeking benefits must be unmarried;
  2. The marriage must have lasted 10 or more years;
  3. The spouse seeking benefits must be at least 62-years old; and
  4. The ex-spouse must be eligible for Social Security retirement.

Required Documents To Apply For Benefits

To apply for benefits, the following documents must be submitted:

  1. Working spouse’s Social Security number;
  2. Copy of marriage certificate;
  3. Copy of the Final Divorce Decree; and
  4. Birth Certificates of each spouse.

In the example noted above, Mary and Tom have been married for a total of 9 years 11 months.  As you can see, it might be in Tom’s best interest to do a bit more gardening for the next month or so. 

Each divorce is different, and the decisions aren’t always related to finances. However, knowing your options certainly can make these tough choices that much easier.

This article is provided for education purposes only. Nothing in this article is intended to constitute legal advice and should not be construed as such. 

[1]  Jefferies v. Jefferies, 895 P.2d 835 (Utah Ct. App. 1995).

[2]  Woodward v. Woodward, 656 P.2d 431 (Utah 1982).

[3]  Social Security Act, 42 U.S.C. 407(a)

[4]  Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979).


Michael Hepworth

Michael Hepworth

Managing Attorney at Hepworth & Associates
Michael is the Managing Attorney of Hepworth & Associates, LLC.
Michael Hepworth

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