Is Social Security Considered Separate Property in a Texas Divorce


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In Texas distinguishing between separate and community property is an important step in the divorce process when it comes to dividing property. This is because a spouse keeps all of his or her separate property. By contrast community property is subject to division by the divorcing spouses.

One Texas Appellate Court says U.S. Social Security benefits are Separate Property

Houston Divorce Attorney: In the 2013 divorce case "In re Marriage of Everse" out of Amarillo new case law was made. In that case the Court found that no previous Texas divorce case had considered section 407(a) of the Social Security Act and whether it precluded “a just and right division of Social Security benefits already received, but courts in other states have applied section 407(a) to their laws regarding division of marital property.”

After considered the facts in and Idaho case Bowlden v. Bowlden,794 P.2d 1145 (Idaho Ct. App. 1989), remanded, 794 P.2d 1140 (1990). The Amarillo court adopted the reasoning of the Idaho court and other courts that the Supremacy Clause of the US Constitution causes federal statutes to supersede state family law with regard to Social Security benefits. As such the Amarillo Court agreed that Social Security are separate property.

Foreign Social Security May Not Be Separate Property

The same court found that the husband in the case had presented sufficient evidence to find that his Dutch Social Security benefits were separate property. The Appellate Court did not provide any guidance on what would be sufficient for foreign Social Security to be a person’s separate property.

What does this mean?

Family Law Attorney Houston: It means that U.S. Social Security Benefits are arguably separate property in Texas. There are 14 Courts of Appeals in Texas and 1 Court has ruled they are separate property. When reviewing this case I could not find any other supporting cases from any of the other Courts of Appeal in Texas.

This means the other Courts of Appeal could rule for this case or against. This means that in some parts of Texas U.S. Social Security could be separate while it is community property in others. We will have to wait and see ... Continue Reading
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