In a divorce, can a spouse demand and get any part of your work comp or Social Security?
3 attorney answers
If the marriage lasted more than 10 years, then both spouses get to claim social security retirement benefits, but payment to one spouse does not decrease benefits available to the other spouse. Social security benefits are not community property - for that matter neither is the social security tax that was used to pay for social security benefits.
Workers compensation benefits are more interesting. To the extent that workers compensation benefits compensate for lost earnings that would have been earned during the marriage, they are community property. But to the extent that they replace earnings that would have occurred after the date of separation they are separate property.
Figuring out the purpose of a settlement "compromise and release" of workers compensation benefits can require hiring expert witnesses to decypher it.
Available to represent Family Law clients in the Counties of San Bernardino, Los Angeles and Riverside.
Under Marriage of Ruiz (2011) 194 Cal.App.4th 348, the court can equitably apportion Worker's Compensation benefits, to compensate the community for loss of income the injured spouse would have earned prior to separation, and to compensate the injured party for loss of income after separation, no matter when the payments are received. In a divorce spouse cannot get any part of the other's Social Security. However, for Spousal or Child Support purposes, Worker's Compensation benefits (other than lump-sum) and Social Security payments are income, and interest at a reasonable rate of return on lump-sum Worker's Compensation benefits is income.
Please note that this answer does not constitute legal advice, and should not be relied on, as each situation is fact specific, and it is not possible to evaluate a legal problem without a comprehensive consultation and review of all the facts and court pleadings filed in the case. This answer does not create an attorney-client relationship.
As to social security, this is not made a part of the divorce since the state of California has no jurisdiction to divide any benefits granted by federal law. When the wife comes to retirement, she will have the opportunity to "elect" certain social security benefits but this won't necessarily affect your SS benefits. As to the workers comp, it depends on the nature of the claim but any income could be subject to how much spousal support might be awarded to one of the parties.
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