Social Security benefits are not marital property in a Georgia divorce, so the court cannot divide them, though they can still matter in other ways.
Federal Law Keeps It Out
In Rabek v. Kellum, 279 Ga. 709 (2005), the trial court divided a couple’s retirement assets equally after a 25-year marriage, leaving out the wife’s Social Security retirement benefits. The Georgia Supreme Court explained: “Unlike a pension, her social security retirement benefits are precluded by federal statute from consideration by state courts as marital property and thus are not subject to equitable division.” The statute is the Social Security Act’s anti-assignment clause, 42 U.S.C. 407(a).
A Pension in Place of Social Security
The husband in Rabek was a federal air-traffic controller who, because he was in the Civil Service Retirement System, did not participate in Social Security. He argued that part of his pension stood in for Social Security and should be left out of the division. The Supreme Court called that an issue of first impression and did not decide it, because he offered no evidence of what that part was worth, and it affirmed the division of his entire pension.
Railroad Retirement
In Lanier v. Lanier, 278 Ga. 881 (2005), the Supreme Court explained that Tier I railroad retirement benefits “are equivalent to those the employee would receive if covered by the Social Security Act” and are not marital property, while Tier II benefits, tied to earnings and career service like a private pension, can be divided. It also upheld an alimony award that treated the husband’s expected railroad retirement benefits, Tier I included, as a future source of income.
Where Else Social Security Matters
Our post on Social Security and alimony offsets covers a former spouse who draws benefits on the other’s work record and benefits counted as income under a decree’s terms.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!