{2:30 minutes to read}  Social Security retirement benefits are not treated in the same way pensions, 401(k)s and all other retirement plans are treated. In fact, the rules surrounding Social Security specifically state they cannot be divided up as if they were property. This is of importance because very few attorneys, mediators or, even, financial professionals, get involved in how Social Security should be handled in a divorce.

The significant problem for many couples is that Social Security is not only a retirement plan, it is also designed to be a financial safety net. The particular aspect that makes this very, very unfair in many divorces is that the person earning less money, which is typically the wife, will receive an amount equal to half of what the husband would receive from Social Security, unless her account would give her more than half of what he would receive.

It’s important to immediately note that this half does not affect what the other one receives in any way. In effect, Social Security will pay out 150%, not just 100%. The end result is that if the high earner receives the maximum Social Security benefit (in 2018 that’s $2,788 a month), the person earning less would receive half as much ($1,394 in 2018).

The rules also say that a couple can agree to split the difference so that they each come out with the same amount of Social Security, if they agree that the money from Social Security be used for maintenance. The couple can’t do it just by saying, “We’re gonna split it.” They have to agree that the additional amount will be treated as alimony or maintenance, which can then be used by the Social Security Administration to divide the amount so that they each get a check for what amounts to 75% of that 150%. The payments can be divided up by the Social Security Administration, if a proper court order is submitted.

Not a lot of people manage to do this, but I think it’s something we should try to take into account when dealing with situations where the wife stayed home to take care of the children, which greatly impacts her Social Security payment. 


Steven L. Abel, Esq.
101 South Broadway
Nyack, NY 10960
(P) 845-638-4666
(E) [email protected]