With the aging of the Baby Boomer generation and the increase in "gray divorces" that we are seeing in the Dallas, Texas area, I am more frequently being asked about the effect of social security benefits in divorces.

Social security benefits are not a divisible asset upon divorce. But, Jimmy Verner reports in the Section Report newsletter of the State Bar of Texas Family Law Section on two recent cases from other states where a disparity in social security benefits was considered in the overall division of the assets of the marital estate.

In Vermont, a court of appeals held that social security benefits were too speculative to form the basis of an offset in the property division because the benefits are subject to the will of Congress. In Manning v. Schultz, 2014 VT 22, ___ A.3d ___, 2014 WL 840815 (2014), the Vermont Supreme Court reversed a trial court that credited a husband’s share of the marital estate with $88,158, and allowed an equivalent offset to the wife’s estate, the $88,158 representing the difference between the present value of the parties’ respective projected Social Security benefits, because Social Security benefits can be revised “at congressional will” and therefore cannot be valued “without excessive speculation.” 

On the other hand, an Oregon decision upheld a ruling where the husband’s share of the estate was reduced by an amount equivalent to the disparity in social security benefits. In In re Marriage of Herald & Steadman, 355 Or. 104, 322 P.3d 546 (2014), a divided Oregon Supreme Court affirmed a trial court’s decision to reduce a former husband’s share of a former wife’s pension by the amount of Social Security benefits the former wife would have received had her federal employment allowed her to contribute to Social Security in lieu of pension contributions, the trial court reasoning “that it would be unjust for husband to receive half of the value of wife’s CSRS pension at her retirement and, at the same time, enjoy his own full share of Social Security benefits.”

It will be interesting to see where Texas courts head with this issue as more people get divorced later in life. From a practical standpoint, if a question of disparity of social security benefits arises in a case, it may be worthwhile to bring on an expert who can offer opinions about social security benefits to the court to illustrate a disparity between the parties.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.