Social Security Benefits and Divorce

Divorcing parties often asked about Social Security benefits when they are divorcing.  It is important to for divorcing parties to understand the Social Security is federal law, which preempts state law.  In states like Nevada, which presumes property acquired during marriage is “community property, this is not accurate with regards to Social Security. 

Social Security is “income” for purposes of alimony, and therefore, a family court judge may consider this income in determining whether one spouse will pay alimony to the other.  Further, a divorced spouse may derive benefits from the other spouse’s Social Security if the marriage was at least ten years and the party seeking benefits is at least 62 and not married.

In sum, while Social Security benefits are not an asset that the family court judge may divided, it is income that may be considered in determining one spouse should receive any alimony.