SS Benefits Are Radioactive –You Can’t Even Consider Them.

July 14, 2016 § Leave a comment

http://www.illinoisdivorce.com/#!social-security–maintenance/cogl

Conclusion: SS Benefits Are Radioactive –You Can’t Even Consider Them.

So, there you have it. The court cannot divide Social Security benefits (IRMO Evans). The parties cannot divide Social Security benefits (IRMO Hulstrom). The court cannot award an offset to correct for a disprarity in Social Security benefits (IRMO Hawkins). And the court cannot even consider Social Security benefits when dividing the other property (IRMO Crooks). If a lawyer tries to even mention Social Security benefits in a divorce case, everyone should object and get the train back on the track because Social Security benefits have no place in that case — The Illinois Supremes have spoken.

This rule applies not just to property division, but to maintenance awards, too. That’s because the anti-alienation clause (see the very top of this article) says “the right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.” That means that when it’s considering income streams to establish maintenance payments, the court cannot even consider the future income stream that Social Security benefits would provide because those would be “future payments” and “moneys payable.” Indeed, the appellate court in IRMO Hulstrom said “[p]arenthetically, we note that section 407(a) prohibits the transfer of the right of any person to future payment of social security benefits, including ‘moneys paid or payable’ under the act.”

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