In re Marriage of Everse, 07-11-00220-CV (Tex. App.—Amarillo June 18, 2013).

When dividing property in divorce, Texas courts distinguish between separate property and community property. A spouse keeps all of his separate property. Community property, on the other hand, is divided between the divorcing spouses.

In the Everse case, the Amarillo Appellate Court made two significant additions to the division of Social Security benefits in divorce.

First, invested Social Security benefits are a person’s separate property as long as the benefits are traceable. The Court sites an Idaho case with similar facts. Bowlden v. Bowlden, 794 P.2d 1145 (Idaho Ct. App. 1989), remanded, 794 P.2d 1140 (1990). “There, the husband began receiving monthly Social Security benefits during the marriage. The marital community had sufficient other income to support the couple so the benefits the husband received from Social Security were deposited in checking and savings accounts. At the time the parties were divorced, the husband claimed the money he received from Social Security was his separate property, while the wife maintained it was community in nature.” The Amarillo court adopted the reasoning of the Idaho court and other courts: the Supremacy Clause of the US Constitution causes federal statutes to supersede state family law with regard to Social Security benefits.

Second, foreign Social Security benefits are community property. The parties married in 1993, and Mr. Everse began receiving Dutch Social Security benefits in 1996. The Dutch Social Security benefits were a product of Mr. Everse’s work in the Netherlands from 1948 through 1960. The Court ruled that without something more than merely evidence that his foreign income was Dutch Social Security, the foreign income was community property.

Where does the Appellate Court leave us? The Appellate Court does not tell us what would be sufficient for foreign Social Security to be a person’s separate property.