November 18, 2005
Case Law Development: Dividing Social Security Benefits as Property in Divorce -- Not Even if the Spouses Agree
The South Carolina Court of Appeals reversed a trial court divorce decree that incorporated a settlement agreement providing that if Husband received social security benefits, he would pay 1/3rd of each payment to Wife. Because 42 U.S.C. sec. 407(a) (1998) provides that Social Security benefits "shall not be transferable or assignable" the court held that the family court lacked subject matter jurisdiction to divide these benefits, even if the division was the product of the parties settlement agreement.
Simmons v. Simmons, 2005 S.C. App. LEXIS 244 (November 14, 2005)
Opinion on the web at http://www.judicial.state.sc.us/opinions/displayOpinion.cfm?caseNo=4043 (last visited November 17, 2005 bgf)