In a divorce case where spousal support is ordered, how are Social Security benefits addressed? The Arizona Court of Appeals addressed this issue in
Leathers v. Leathers, a 2007 case.
A federal statute, 42 U.S.C. § 407(a), prohibits the transfer or assignment of rights to Social Security. So it can't be garnished, like wages can be, and it can't be divided in the property division as community property, the way a pension ordinarily can be. See generally Kohler v. Kohler, a Court of Appeals 2005 case.
In Leathers, though, the trial court ordered the husband to pay the wife, as indefinite spousal maintenance, one-half of the
value of any Social Security benefits that he received in the future. The husband argued that such an order is either an illegal attachment of his federal old age pension or an illegal award of Social Security as community property. But the Court of Appeals disagreed.
The trial court had ordered indefinite spousal maintenance. Because the exact amount of husband's eventual income Social Security was unknown at trial, the trial court ordered half of the amount husband received to be the amount of maintenance. But the trial court specifically awarded the "value of one half" rather than attaching the husband's Social Security itself. Therefore, the Court said, the award was legal.
However, the Court of Appeals said that to ensure an equitable award, a trial court must take into consideration that the wife would likewise be drawing Social Security benefits in her own name. It was not clear that the trial court in Leathers had done that. So for that reason (among others), the Court of Appeals sent the case back for further consideration.
The Leathers case illustrates why it is vitally important to have a hard fighting, straight talking Phoenix divorce lawyer in your corner if you are facing
divorce, spousal maintenance,
property division,
child support, or
child custody issues. So contact us right away for a free consultation.