How Does Divorce Affect Social Security Benefits in Washington?

You are dividing the house, the 401(k), and the savings, and then someone asks what happens to Social Security. After a long marriage in which one spouse earned most of the income, the answer can be worth hundreds of dollars a month for the rest of your life.

The answer has two halves. A Washington court cannot divide Social Security benefits in a divorce, because a federal statute, 42 U.S.C. 407, bars any transfer or assignment of them. But federal law also gives many divorced spouses something no decree could: a benefit of their own based on a former spouse's work record, under 42 U.S.C. 402, if the marriage lasted at least 10 years. Neither half depends on what your decree says, and both are worth understanding before you sign anything.

Can a Washington Court Divide Social Security in a Divorce?

No. Under 42 U.S.C. 407, the right to future Social Security payments cannot be transferred or assigned, and the benefits are not subject to garnishment, attachment, or other legal process. That federal rule overrides Washington's community property system. Even though the payroll taxes came out of community wages during the marriage, a superior court judge in Everett cannot award one spouse a share of the other's Social Security the way the judge can divide a pension or a 401(k).

The Washington Supreme Court addressed this directly in In re Marriage of Zahm, 138 Wn.2d 213 (1999). The court held that federal law makes Social Security benefits the separate, indivisible property of the spouse who earned them. A trial court cannot treat them as community property, and it cannot calculate a value for the benefits and then award the other spouse a matching amount of other property to make up for it.

Federal law does carve out one exception. Under 42 U.S.C. 659, Social Security benefits based on a work record can be reached to enforce a child support or alimony order. That statute's definition of alimony excludes payments made to carry out a division of property, so the exception does not reopen the door to dividing the benefits themselves.

Does the Court Just Ignore the Benefits, Then?

Not entirely, and this is the part of Zahm that matters most in practice. When a court divides property, RCW 26.09.080 directs it to reach a just and equitable result after considering the community property, the separate property, the length of the marriage, and the economic circumstances of each spouse when the division takes effect. Zahm held that a court may consider each spouse's Social Security benefits as part of those economic circumstances. A judge could not properly evaluate where each spouse stands financially, the court reasoned, while ignoring benefits one of them receives.

So the line runs between considering and dividing. A judge may notice that one spouse will have a substantial monthly benefit and the other a small one, and weigh that with everything else in deciding what split of the divisible property is fair. A judge may not put a dollar figure on the benefit and offset it. The larger process is covered in how property is divided in a Snohomish County divorce, and the pensions, 401(k)s, and IRAs that a court can divide are covered in what happens to retirement accounts in divorce.

Social Security also bears on maintenance, Washington's term for alimony. The factors in RCW 26.09.090 include the financial resources of the spouse asking for maintenance and the other spouse's ability to pay while meeting their own needs. A monthly benefit, or the lack of one, is part of that financial picture. The article on how spousal support is calculated in Washington walks through those factors.

Can I Collect on My Former Spouse's Record?

Often, yes, and this comes from federal law rather than from anything a Washington court orders. Under 42 U.S.C. 402(b) and (c), a divorced spouse can receive a benefit on a former spouse's earnings record when four things are true: the marriage lasted at least 10 years, the person claiming is currently unmarried, the person claiming is at least 62, and that person's own retirement or disability benefit is smaller than the benefit available on the former spouse's record.

The 10 years are measured strictly. The definition in 42 U.S.C. 416(d) requires 10 years of marriage immediately before the date the divorce became effective.

The amount is capped. According to the Social Security Administration, a divorced spouse who starts at full retirement age can receive up to one-half of the former spouse's full retirement amount, and less if benefits start earlier. If you qualify on your own record as well, Social Security pays your own benefit first and adds enough to bring the total up to the higher amount.

Your former spouse does not have to be collecting yet. If your former spouse is at least 62 and has enough work history to qualify but has not applied, you can still claim on that record once you have been divorced for at least two years. And if your former spouse remarries, your eligibility continues. Your own remarriage is different: the benefit is for a divorced spouse who is not married, so marrying again generally ends it.

Does My Claim Reduce What My Ex Receives?

No. The Social Security Administration states that the amount a divorced spouse receives has no effect on the benefits the worker or the worker's current spouse may receive. It is not a term of your decree either. It is a claim you make with the agency when you become eligible.

What Happens if My Former Spouse Dies?

A surviving divorced spouse can qualify for survivor benefits under 42 U.S.C. 402(e) and (f). The same 10-year marriage requirement applies. The survivor generally must be at least 60, or at least 50 with a disability, and unmarried, although a remarriage after age 60 (or after 50 with a disability) does not count against you. A survivor who claims at full retirement age can receive up to 100 percent of the deceased worker's benefit, noticeably more than the one-half available while the worker is alive. The agency also notes that a person caring for the deceased worker's child may qualify regardless of age or the length of the marriage.

Why the 10-Year Mark Matters

Because the federal clock runs to the date the divorce becomes final, not the date you separated or filed, the calendar deserves a look in any marriage approaching its tenth anniversary. Suppose Renee and Paul have been married nine years and eight months when their case is ready to finish. If the decree is entered now, Renee, who spent most of those years out of the paid workforce, will not qualify to claim on Paul's record as a divorced spouse. If the marriage reaches the 10-year mark before it ends, she may be able to. Timing is only one consideration among many, but it is far better noticed before the decree is entered than after.

Know the Federal Rules Before You Settle

Social Security will not appear as a line in your property division, but it shapes what a fair division looks like and what each of you will live on later. The Law Office of Chad Foster helps people work through property, maintenance, and retirement questions with the federal rules in view. Call 425.785.8679 to talk with a Snohomish County family law attorney before the final papers are signed.