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Is 42 USC 407(a) applicable in a Kentucky divorce?

Louisville, KY |

It seems to imply that all social security benefits, "paid and payable", are non-marital. Because, if they were marital, they would be subject to division by the court. But 407(a) makes it clear they aren't.

But, when I ask Kentucky lawyers, on Avvo and elsewhere, if social security benefits are marital, they usually say they usually are.

Is it because most Kentucky lawyers don't consider 407(a) to be applicable to Kentucky divorce cases? Or because they interpret it differently? Because it's hard to read and easy to confuse?

Only about 1 out of 10 of Kentucky divorce lawyers seems to hold the position that all past and future social security benefits are non-marital. Are they the ones who know what they're talking about? Or are they the ones who don't?

Attorney Answers 5


  1. Respectfully, Dear Asker, you are confusing apples and oranges. 42 USC 407(a) is the federal law that protects Social Security benefits from the claims of creditors. The benefits cannot be levied or attached to satisfy debts. Federal law applies to divorces in every state. That does not answer your question, however, as you are confusing protection from the claims of third-party creditors with division of assets in a marriage. Whether Social Security is a "marital asset" and subject to division by the divorce has nothing to do with the statute cited. Social Security benefits already received and remaining on hand MAY be subject to property division in a divorce, but entitlement to future benefits cannot be altered by a decree of divorce. A divorced decree can, however, require payment of spousal support, even where the payer's only income is Social Security. In making that determination, the payee's only entitlement to Social Security on his/her own account and on the account of the spouse will usually be taken into consideration. (And this well illustrates that one cannot get an accurate answer without knowing the right question, and why relying on local experienced counsel for actual representation rather that merely asking "is Social Security a marital asset" could make all the difference in obtaining a favorable answer.

    Best wishes for an outcome you can accept, and please remember to designate a best answer.

    This answer is offered as a public service for general information only and may not be relied upon as legal advice.


  2. I agree with the reliable Ms. Sinclair. Get a lawyer to assist you.


  3. The statute you cite, 42 USC 407(a) makes them non-divisible and non-assignable; however it does not say that they are non-marital. As such, they can be calculated as a marital asset. Generally, the marital value is offset against other assets to avoid any confusion. It can also be used to evaluate spousal support, if any. Your family law attorney should be able to assist you in this matter.

    Kentucky law does not certify specialty of practice in this area. The advice given herein is informational and should not be considered as creating an attorney/client relationship. Michael Bouldin is an independent attorney located in Northern Kentucky. It is strongly recommended to not give any confidential information on any website.


  4. Marital assets under Kentucky law is not determined by 42 usc 407.

    The information you obtain from this website is not legal advice.


  5. I think this is a good example of how a smart person (that's you) will often mess up their case if they try to do it themselves (that's also you). Hire an experienced lawyer and listen to what he/she says.
    (And you might also consider going to law school, because you're pretty sharp. Not kidding. Good luck to you!)

    This information is for general informational purposes only and is not intended to constitute legal advice. By responding to this question, I am not intending to form any lawyer-client relationship whatsoever.

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