On June 18 the Illinois Supreme Court confirmed in Marriage of Mueller that a spouse’s potential Social Security benefits cannot be considered when dividing marital property.
In Mueller the wife worked for a private company. She had Social Security taxes withheld from her gross income. She could expect to receive full Social Security benefits at age 67, presuming she lived to that age in the year 2033. The husband worked for a police department. He did not have Social Security taxes withheld from his income because he contributed to a municipal retirement fund. The husband could retire with full benefits at age 50 in the year 2017.
During the Muellers’ divorce, the trial court did not consider the wife’s potential Social Security retirement benefits in its marital property division. The overall property division included the wife receiving about 35% of the husband’s police pension. The Illinois Supreme Court affirmed.
While Social Security benefits acquired during the marriage would normally be presumed as marital property under Illinois divorce law, federal law treats Social Security benefits differently. Part of the Social Security Act prohibits almost any legal process to transfer or assign Social Security benefits. A limited exception allows for enforcement of child and spousal support obligations, but excludes obligations from property divisions in divorce. Thus Social Security benefits are not marital property in an Illinois divorce.
In 2004 the Illinois Supreme Court decided in Marriage of Crook that a divorce court cannot consider Social Security benefits to equalize a property distribution, and that Social Security benefits could not be divided directly or used as a basis to offset a property distribution. The Mueller court goes further, disallowing ANY consideration of a spouse’s Social Security benefits in a way that affects the property valuation or division.
The Mueller court also noted that trying to value Social Security benefits is too speculative. A person must survive to the appropriate age to start collecting benefits. The amount of Social Security benefits also cannot be calculated exactly until the person begins receiving them.
Many divorces involve pension and retirement issues, including Social Security. I understand the arguments to include or consider Social Security in a divorce property division, but we must follow federal law that excludes it.