Tag Archives: Community property

How Will My Social Security Benefits be Affected by Divorce?

31 Aug

Many individuals considering divorce have concerns beyond simple property division, and worry about how to protect their social security benefits. Though social security benefits are similar to pension plans, which are dividable as community property in the State of California, Federal law overrides California law and keeps social security benefits from being divided as marital community property. Upon a divorce, social security benefits are designated as the separate property of the spouse who accrued the benefits throughout his or her employment.

However, current AND former spouses may qualify for derivative social security benefits, which are benefits earned through the current of former spouse’s employment. There is a limitation of the qualification for these benefits in that the marriage must have been at least of 10 years duration. Parties seeking divorce who have not quite been married ten years and wish to qualify for such benefits in the future may consider legal separation as an alternative. For more information on legal separation, please see “Legal Separation as an Alternative or Precursor to Divorce”.

Though social security benefits are mandated to be assigned as separate property by Federal law, under California dissolution law these benefits ARE considered income for the calculation of support. All sources of income are considered in California when looking into support awards. For this reason, if you are seeking a divorce and have questions about support and social security, it is important that you seek legal advice. Call today for your free consultation!