Legal Question in Family Law in Nevada

It should not be a matter of "scared," but the underlying order may well be unenforceable. No state court divorce judgment can alter Social Security payments, to which you either are entitled to make a claim under (say, for marriage of at least ten years) or you are not:

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Boulter v. Boulter, 113 Nev. 74, 930 P.2d 112 (1997) Parties were divorced after marriage of 37 years. The decree merged a property settlement agreement signed by both parties, and required equalization of the Social Security payments received by each of them. Husband refused to apply for Social Security when he turned 65. Wife filed a motion. The district Court (Ames) held that there was no violation of federal law and that any ambiguity (apparently, as to whether payments were to begin at eligibility) should be construed against the Husband's attorney since he drafted the property settlement agreement.

The Supreme Court reversed. Under 42 U.S.C. 407(a) (1983), any state action is preempted by a conflicting federal law, such as the Social Security Act, under the Supremacy Clause (Article IV, Clause 2) of the United States Constitution. Citing various cases from around the country indicating that Social Security payments are "immune to adjustment" by state courts dividing property at divorce, and noting that certain spousal benefits are built in to the social security law itself, the Court noted the holding of the United States Supreme Court that section 407(a) imposes "a broad bar against the use of any legal process to reach all social security benefits," citing Philpott v. Essex County Welfare Bd., 409 U.S. 413, 417 (1973), and noting the holding of Hisquierdo v. Hisquierdo, 439 U.S. 572, 575-76 (1979), superseded in part by 45 U.S.C. 231m (1986). The Court then found that merging the property settlement agreement into the divorce decree constituted "state action."

The Court rejected the wife's argument that the agreement merely constituted an agreement between private individuals as to how to use Social Security proceeds once received (which is permissible), since it was actually a forbidden contract to transfer unpaid (future) benefits. For good measure, the Court ruled impermissible voluntary as well as involuntary transfers or assignments. Even a bank account consisting of benefit payments is exempt.

In its final word, however, the Court, having found the agreement to share the benefits unenforceable, remanded to the district court "with instructions to reconsider the property distribution to the parties, and the issue of attorney's fees and costs."

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