Legal Question in Family Law in California

California's community property law is preempted by federal law governing social security benefits.

Under federal law, the insurance benefits earned by the employee spouse during marriage are his/her separate property under the social security system. The spouse who has not worked, however, may be entitled to a derivative benefit based upon the working spouses contributions to this system. This is considered the separate property of the non working spouse as the primary benefit is the separate property of the working spouse.

The benefit is payable to a divorced spouse if they were married to a person entitled to social security benefits for a period of ten years immediately before the date of the final divorce decree; have not remarried; are 62 years of age or older; have filed their application for social security insurance benefits; satisfy a two year waiting period and meets the entitlement criteria regarding the insurance benefits.

It is advisable that you speak to a social security office near you to verify what benefits will be paid, and the affect on those benefits during a divorce.