Social Security & Divorce

We are often asked about social security benefits and how they are distributed in a divorce in North Carolina.  The simple answer is that they are not.  Social Security benefits are not considered marital property subject to division in the State of North Carolina because Congress has preempted state law. See Cruise v. Cruise, 92 N.C. App. 586, 589, 374 S.E.2d 882, 884 (1989).  Their value, however, may be considered in distributing other assets.

The Federal Government has established specific rules concerning social security benefits. If you were married for at least 10 years, you may be able to draw social security based on your ex-spouse’s earnings record (if their record would provide you a higher payment than your own record).  If your divorced spouse remarries, he or she generally cannot collect benefits on your record unless their later marriage ends (whether by death, divorce or annulment).  See the Social Security Administration website for more details.

Social Security disability benefits intended to replace the loss of earning capacity are considered the separate property of the disabled person in North Carolina and are not subject to division. See Cooper v. Cooper, 143 N.C. App. 322, 326, 545 S.E.2d 775, 778 (2001).