What if one divorcing spouse works for a private company and has a pension and will be eligible for social security and the other is a government employee? The Court will divide the marital portion of the private pension and the government pension but cannot divide the social security. Should the Court take account of that difference in expected government benefits in dividing the pension? Not in Maryland.
In Pleasant v Pleasant, 97 Md. App. 711, 632 A.2d 202 (1993), the Maryland Court of Special Appeals held federal law precluded treating social security benefits as marital property. It affirmed the trial court’s holding that the marital portion of husband’s pension, funded by payroll deduction during the marriage, would be equally divided when received.. The wife’s social security benefit, funded by payroll deduction during the marriage, would not be divided. The court made no other adjustment to the equitable distribution of marital property. Is that unfair? Of course.
The law of Virginia is the same on this point. See e.g. Esposito v. Esposito, 2002 Va. Cir. LEXIS 234 (Fairfax County)