The division of assets in divorce often includes pensions, 401(K)’s, IRA’s and other retirement assets. The assets to be divided do not include a spouse’s claim to or expectancy of receiving social security benefits. Courts have held that social security is a government benefit not property and therefore it cannot be divided in divorce.

Americans receive social security benefits based on their own quarters of work and earnings or their spouse’s. The system is funded by employee wage deductions and employer contributions. If a couple is divorced after ten years or more of marriage either can claim benefits based on the earnings of the other. These spousal benefits are generally one-half of the employee’s benefits. If your spouse is paid benefits based on your earnings, your benefits are not reduced.