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Did He Get the Gold Mine, While She Got the Shaft?

What’s mine is mine, and half of what’s yours is mine, too.

That’s what a California man got to say after an appeals court upheld a divorce court’s classification of his Social Security benefits as his separate property, and the wife’s municipal retirement benefits as divisible marital property to be split equally between them, according to Bloomberg BNA.

On the surface, this might seem like an unfair ruling—a reversal of the famous Jerry Reed song, if you will. It isn’t. Here’s why.

It comes down to the definition of these types of marital property. Social Security is a benefit that most Americans must contribute to through mandatory payroll deductions.

In this case, the husband is an attorney who contributed to Social Security throughout his marriage. The wife is a deputy district attorney who participates in the Los Angeles County Employees Retirement Association Plan E, which is a defined benefit retirement plan funded by the county. Employees do not contribute to it, nor do they contribute to Social Security.

The Social Security Act’s windfall elimination provision and the Government Pension Offset bars the wife from receiving Social Security benefits individually and as the spouse of someone who contributed to Social Security, according to the Bloomberg article.

Although the husband’s Social Security benefits cannot be shared with the wife, the wife’s LACERA benefits that accumulated during the marriage are considered community property and should be divided, according to California law.

“It may sound like an unfortunate outcome for the wife, but it’s the law,” says John Griffith, an Encinitas divorce lawyer who is a certified family law specialist.

In the ruling, Justice Audrey B. Collins explained that it isn’t the appeals court’s place to “change or defy California law.”

She offered a possible solution, though.

“It is within the parties’ power to create a more equitable solution—even if the court may not do so,” she said in the Bloomberg article.

State law allows a couple to decide upon an unequal division of assets via a written agreement between the divorcing spouses, or an “oral stipulation of the parties in open court.”

The division of assets is an important consideration during a divorce. An attorney can help you navigate this area and help reach a solution that is suitable to both parties.