Don’t forget to divide social security benefits at divorce

By:  Carole L. Chiamp

A recent Michigan divorce case discussed the division of social security benefits (Biondo v Biondo, C of A No. 294694, 3/15/11, ___ Mich App ___ (2011)).

In a case where a spouse works outside the home and the other spouse is a homemaker and raises the children the worker receives a social security benefit at retirement usually two times as much as the non-working spouse (assuming the parties were married ten years which qualifies the non-working spouse to receive social security benefits through the spouse).  Some attorneys ignore social security benefits which result in the non-earning spouse receiving one-half of the benefit received by the working spouse.  This case allows the non-working spouse to receive a fair amount which may be more than one-half.

The Court of Appeals joins the majority of state courts that have considered this question and hold that the circuit court may consider the parties anticipated social security benefits as one factor, among others to be considered, when devising an equitable distribution of marital property.  The court cautioned that in dividing the marital estate, the court may not treat social security benefits as tantamount to a marital asset.  Instead, the circuit court may take into account in a general sense, the extent to which social security benefits received by the parties affect the Sparks factors.  The court sent the case back to the circuit court for consideration of this issue.

This case is important to divorcing parties, especially those reaching social security age, or those actually receiving social security benefits.