The signing of the Social Security Fairness Act on Jan. 5, 2025 by President Biden has created profound and pressing issues for attorneys, especially domestic relations attorneys. Those issues are not subject to easy, superficial answers, hence the length of this article. Those issues may literally cost a client hundreds of thousands of dollars. Because of the dollars involved, the complexity of the issues, and courts facing this issue for the first time, this article is not intended to flesh out all the answers. Instead, our intent is to alert attorneys to the salient issues and the time constraints involved.
We have also structured this article so that essential information is covered in the first pages with more detailed discussion following.
Caveat: This article will not deal with the significant disability benefits under Social Security focusing instead on property, support and survivor issues. No attorney should take any action until they have spoken to officials of the Social Security Administration to confirm their understanding of the issues involved and have visited its website at ssa.gov.
A top issue is the necessity of filing timely 60 (B) motions to grant relief from inequitable pension division orders which have not yet been implemented. Next will come modification of spousal and/or child support because of the retroactive nature of the Act to January 1, 2024, as well as its prospective impact on support issues. Note: impacted government workers may receive large lump sum payments up to $7,044 in the coming months because of the demise of the WEP. Retroactive payments under the GPO could more than double those lump sum payments for older clients. The third issue is the timely filing of applications for survivor benefits for applicable state and government employees. These survivor benefits -- once thought unavailable -- are typically only available on a prospective basis. Thus, alacrity is paramount.
Mary Jones, your client, is a retired 67-year-old professor who is currently receiving a $6,600 a month pension from a state teachers’ retirement system. She divorced Joe Smith, an intense banking executive, at age 35. She is unmarried having been divorced [or widowed!] from a second spouse for years. She recently heard that Joe Jones had died after a very successful career in banking. You ask her if she has applied for a survivor benefit on Joe’s Social Security earnings because of the 11-yearmarriage and being unmarried at the time of his death. Mary explains that Social Security advised her several years before that she would not receive any spousal or survivor benefits until they were greater than $4,400 a month because of the GPO. The GPO reduced any Social Security benefits by two dollars for every three she received from the teacher’s pension which was not coordinated with Social Security. That is why Social Security told her to forget about any spousal or survivorship Social Security. You inform her that the GPO has been eliminated and that if Joe worked at maximum covered wages for35-years she could also be receiving a spousal benefit of $4,018 a month [the maximum FRA age benefit in 2025] subject to cost-of-living adjustments. Her actuarial life expectancy under more recent mortality tables shows she is expected to live some 23 more years.
TIME IS OF THE ESSENCE WARNING: This article is not just for DR attorneys currently or previously involved in a case where one spouse was covered by a government pension plan not coordinated with Social Security and the other spouse was or later became4 covered by Social Security. Clearly, the Social Security Fairness Act will have a significant impact in those states which do what is commonly called “Social Security offsets.” Those offsets were invariably based on equity issues involving lost spousal Social Security benefits in the property division because of the GPO. The equity issue arose because marital money went into procuring those Social Security benefits which were not being shared at divorce because of the previous existence of the WEP and GPO.
Even in those states that ignore Social Security in the property division, the changes will likely have significant impact on spousal and child support calculations.
Remember the official name for Social Security is “Old-Age, Survivors, and Disability Insurance” (OASDI) and you also need to focus on the Survivor and Disability elements of the program as it relates to your clients.
This article is also intended more broadly to alert attorneys who have or have had one of the 28% of federal or state government employees covered by a pension not integrated with Social Security as a client. Those teachers, firefighters, judges, police and civil servants who are older and have seen a spouse or former spouse covered by Social Security die may be losing thousands of dollars each month in survivorship or disability benefits. And because the date of the application for those survivorship benefits may determine when the payments begin, time is truly of the essence. For more detailed survivorship information please go to ssa.gov/survivorplan in the official Social Security Administration website.
Also be aware that much of the guidance on this subject such as the 16-page “Survivors Benefits” booklet have not been updated by the SSA as of the time of writing this article in February2025.
As the Social Security Administration website on the Social Security Fairness Act5 notes:
If you are not sure whether you ever applied for spouses' or surviving spouses' benefits:
You may need to file an application. The date of your application might affect when your benefits begin. Filing sooner might help you get a higher benefit amount.
[Emphasis added by authors]
Note that currently the survivor benefit application is not available online. However, Social Security will take an application by telephone for people who did not previously apply for retirement benefits because of WEP or spouse's or surviving spouse's benefits because of GPO.6
The Avalanche of 60 (B) Motions
Because the authors believe the Fairness Act will create an avalanche of motions based on the Federal Rule of Civil Procedure 60 (B)7 as incorporated into state statutes, our legal team has written a separate article dealing with the motions.8 Suffice it to say here that very strong grounds exist for such motions because of sections 4 and 5 of the Federal 60 (B) Rules which call for relief from judgments if it is “no longer equitable that the judgment should have prospective application.”9 Note the “prospective application” refers logically to orders dividing the state pensions which have not been implemented yet. Section 5 of the Federal Rule offers an expansive reason for the relief stating “any other reason justifying relief from judgment.”
From the Social Security website on survivorship for spouses and ex-spouses:
You may be eligible if you:
Ex-spouses who were married for at least 10 years, as well as some valid non-marital legal relationships, may be eligible.
You might be eligible regardless of age and how long you were married. One common example is if you’re caring for a child of the person who died.
The former spouse can only collect the full benefit at full retirement age (FRA)and may not postpone receipt to a later age to increase benefits. Survivor benefits also exist for children, adult children with a disability and dependent parents.
Cui bono? (Who benefits?)
Again, from the SSA website:
This law increases Social Security benefits for certain types of workers, including some:
Practice Note: Because the law may provide greater income to certain government employees, they may face adverse consequences in child and spousal support determinations. This will be discussed in greater detail later.
The Impact on Property Distributions
Question: Are Social Security offsets to some state government retirement benefits upended with Congress’ passage of H.R. 82, the Social Security Fairness Act, on Dec.21, 2024 [later signed by President Biden] which eliminated the Windfall Elimination Provision (WEP), and the Government Pension Offset (GPO)?
Answer: Future Social Security offset cases will be very fact-driven and can be broadly broken into four categories to help clarify the issues involved:
These are just some of the scenarios we envision. We offer them so that domestic relations attorneys can start to focus on how the Fairness Act will impact their practice. Note that Social Security will likely remain a factor in most divorces involving uncovered government workers and a Social Security covered participant. Of course, we are especially interested in how courts nationally will handle the seismic increase in Social Security benefits for many government employees.
# 1: Younger Couples Married Less Than 10 Years
Younger couples with short term marriages with one spouse in an uncovered government plan and the other working under covered Social Security compensation will likely continue to see reductions in the government plan – even though the Social Security may not be yet vested with the necessary 40-quarters of coverage. This may come with a reward of offsetting assets or deferred distribution reflecting the reduction for the lost Social Security. We say “lost Social Security” because while the government worker may never receive any Social Security due to not meeting the 10-year rule, marital money went into procuring the Social Security for the other spouse.
# 2: Younger Couple Married More Than 10 Years
Here the case for offsets becomes murkier when the government plan participant may become eligible for Social Security retirement, survivor and disability payments because of their marriage to a covered participant. Some courts will base their decision on current law and current marital status. They may reason that if the government retirement recipient10 remarries they have voluntarily relinquished the Social Security benefit and nooffset should be awarded. Others may conclude that discouraging remarriage isnot sound public policy and decide – based on the facts in the case – that aremarriage is more likely if they make an offset and do so.
Currently, according to PewResearch and U.S. Census data most of those who divorce remarry, some sourcessuggesting around an 80% rate. Census data from over 20 years ago indicatesmost remarriages occur within 5 years and remarriage rates increase with age. Divorcerates appear to increase with second and third marriages as well.
Often, an offset – possibly asmaller one – may continue to be ordered. The complexity in these cases is thateven if the former spouse can receive the 50% spousal benefit, the SS participantreceives a 100% benefit, which is inconsistent with the equitable distributionstatutes of most states. Those equitable distribution statutes call for evenlydividing retirement benefits between the parties and Social Security does not dothat. For example, if the covered employee has earned a $1,000 monthly benefitat the full retirement age (FRA), the spouse’s benefit of $500 will still fall $500short of full equity. Note that these benefits are determined without anyreference to martial accrual.
# 3: Middle-Aged CouplesMarried More Than 10 Years
The third group is an especiallyfact-driven one in which a Social Security offset may or may not be made. Many courts will likely decline to try todivine the future and offset at least part of the government pension. They will look at the facts on hand. As inthe last case, these courts may conclude that the 50% independent spousalbenefit falls short of an equitable sharing of the benefits earned during marriage(but again note that marital accrual does not come into play in determining thebenefits) and reduce the size of the government pension to be divided. Some maylook at the remarriage statistics increasing with age as compelling andcontinue to award offsets. Others mayclaim a massive headache from looking into the crystal ball and jettison SocialSecurity offsets all together.
In other words, courts handlingthese cases will likely vary dramatically in their decisions until highercourts start to establish ground rules.
The survivor and disabilityelements of Social Security will probably be ignored unless directly applicableto the immediate family situation.
# 4: Older Couples with LongTerm Marriage
The fourth group will likelycause a dramatic shift in state courts towards QDROs and long -term spousalsupport. It is possible that many stateswith limited spousal support criteria (such as Indiana) may change or be forcedto change because of the 2017 U.S. Supreme Court case of Howell v. Howell11.
In Howell, Justice DavidBreyer writing for the majority could not ignore the dramatic inequity ofposition that the federal preemption can cause in a marriage. Of course, Bryerwas referring to the federal preemption against treating military disabilitypensions as a marital asset, but the same logic applies to excluding SocialSecurity from consideration in a divorce. Read this penultimate paragraphin section II of the Howell decision.
“We recognize, as we recognized in Mansell the hardship that congressional pre-emption can sometimes work on divorcing spouses. See 490 U. S., at 594. But we note that a family court, when it first determines the value of a family’s assets, remains free to take account of the contingency that some military retirement pay might be waived, or, as the petitioner himself recognizes, take account of reductions in value when it calculates or recalculates the need for spousal support. See Rose v. Rose, 481 U. S. 619, 630–634, and n. 6(1987); 10 U. S. C. §1408(e)(6).”
Focus on “calculates or recalculates” [emphasis added by authors] the need for spousal support.” An 8-0 Supreme Court was certainly pointing to the egregiously inequitable results that the federal preemption can cause and pointed directly towards using future spousal support calculations to remediate the damage done.12 “Hardship,” incidentally, is an understatement. Read the Illinois case of In re Marriage of Roberts13 or the accompanying article14 to see how devastating blind adherence to federal preemption can be to individuals. In re Marriage of Roberts occurred in Illinois, a state that had repeatedly said never, no way will we allow Social Security to enter into divorce.15 However, when a court of equity actually had to face the $1,052.45 monthly damage done by ignoring the preemption, they relied on spousal support to rectify the obvious inequity. And the Illinois supreme court did not overturn the decision.
Practice Tip: It is recommended that divorce attorneys always look at all current and potential Social Security benefits of the parties, especially with the elimination of the two penalties on many government employees. The easiest way to make this discovery is to obtain their most recent Social Security statement which will also have survivorship information. Attorneys will need to engage in sophisticated discussions with clients about the risk and rewards of remarriage under Social Security. It is always best practice to help them craft the essential questions and send them off to the closest Social Security office to obtain answers in writing.
It is also recommended practice that the separation agreement language dividing the retirement benefits with QDROs or QDRO-cousins for government plans be far more expansive and clear to take into account future variables that can’t be foreseen at the time of the divorce. QDRO Group will be writing much more about this language in the future and has tasked a legal team to develop that language.
As we noted earlier, quantifying the variables about retirement benefits earned during the marriage will be adaunting task for courts. Some of those variables are remarriage, current or future disability of the parties to or children of the marriage, changes to Social Security and impact of coverture QDROs.
Using current information for offsetting assets may have little resemblance to the actual stream of income earned from retirement entitlements earned during marriage at retirement. And, of course, that disparity is likely to grow as the time until retirement increases.
Because of the complexity of the federal preemption issue, we are also making available a very deep-dive article into the whole issue of Social Security offsets and federal preemption. The article14 was written five years ago with a special focus on Illinois case law and In re Marriage of Roberts15 in particular. We include this because it demonstrates the quandary courts used to face when dealing with wildly unequal streams of income when Social Security entitlements were ignored. It is worth noting that because Social Security awards only a 50% benefit to spouses and former spouses of covered participants there is a conflict with equitable distribution statutes in many states that is rarely confronted, except for older retired couples seeking a divorce.16
Impact on Spousal & Child Support
Question: What will the impact be on spousal and child support determinations?
Answer: Here the Fairness Act will come back to bite non-Social Security plan participants who are receiving a benefit, especially police, fire fighters and teachers who may retire in their late 40s or early 50s. We will discuss this in more detail later in the article.
More Detailed Discussion
The Senate passed H.R. 82, the Social Security Fairness Act, eliminating the Windfall Elimination Provision(WEP) and the Government Pension Offset (GPO). These are provisions of the Act [202(k) for the GPO and 215 for the WEP17]which had reduced or eliminated the potential Social Security benefits for some government employees. It particularly impacted those who worked under pension plans not covered by Social Security as well as those same government employees who also worked under Social Security covered compensation and earned the requisite 40 quarters for coverage.
The bill was later signed by President Joseph Biden. The President’s signature was almost a formality because the votes in the Senate (76-20) and in the House (327-75) would override any veto.
WEP Discussion
The bill is retroactive for all of 2024. The WEP was specifically designed to reduce the amount of Social Security a person would receive if covered by a government pension not coordinated with Social Security, (e.g. the Civil Service Retirement System or state government plans around the country) but had also earned a benefit under Social Security covered employment. The GPO (which will be discussed later) relates to those who were married for at least 10 years to someone who was entitled to or became entitled to a Social Security benefit.
For example: under the WEP, in 2024 such individuals could lose up to $587 of Social Security each month and $613 in 2025 that they would ordinarily receive under Social Security. The only way to avoid the full reduction under the WEP law was for the government pension recipient to have at least 21 years of substantial Social Security earnings. “Substantial” for 2024 would be $31,275 and $32,700 for 2025.
The WEP was designed to gradually phase out until the substantial earnings reached 30 years at which time the reduction was eliminated.
That reduction and the GPO reduction is now gone and this comes at a significant cost of nearly $196 billion for the next ten years according to the Congressional Budget Office, decreasing the solvency of the trust fund by half a year.
Keep in mind that a person who has been married to someone for at least ten years18 is eligible for an independent spousal benefit equaling 50% of the final benefit the covered employee earns. This does not reduce the benefit of the Social Security covered participant.
Important Details to Consider: Former spouses are also eligible to receive the benefit based on the Social Security earnings of their ex if unmarried or later divorced from the new spouse. Two fascinating details covered by a previous footnote: None of the Social Security need be earned during the marriage and the independent 50% benefit is based on the total Social Security benefit earned by the covered participant, not just the benefit earned during the marriage. Mull that last sentence over and contemplate some of the stunning scenarios that could come to pass, especially for younger divorcing couples where the state government plan participant does not remarry.
Special Focus Must Be on the GPO
The GPO was far more damaging to select government employees under those non-coordinated plans with Social Security who also had a spouse working under covered Social Security employment.
The GPO reduced the spousal Social Security by two dollars for every three dollars received from the government pension. Thus, if a teacher had a $6,000 a month pension from a teachers’ plan, their spousal benefit would have to exceed $4,000 before they received a penny. Considering the maximum age 62 benefit in 2024 was $2,710 and the resulting 50% independent spousal benefit is $1,355, few government employees with full work careers ever shared in the Social Security their spouse earned.
The History of Social Security Offsets
Social Security offsets came into being with Cornbleth v. Cornbleth19. It raised an interesting equity issue. The husband, Terry was the appellant and a clinical psychologist at the Veteran’s Administration. He had accrued a pension under the Civil Service Retirement System (CSRS) which is not coordinated with Social Security. His entire CSRS pension was thrown into the marital pot.
His wife, Catherine, was a professor working under Social Security. However, because of the U.S. Supreme Court case of Fleming v. Nestor20 it was commonly believed that Social Security could not be considered a marital asset because it was a mere contingency that could be swept away by Congress at any time. Thus, Catherine’s Social Security benefit was sacrosanct and remained outside the marital pot.
Eric Rome, a Pittsburgh attorney, raised the issue of fairness - or “inequity of positions” as the court put it - in throwing the entire CSRS pension into the marital pot including the component in lieu of Social Security. He suggested, and the court agreed, that the amount of the CSRS that would have been Social Security under covered compensation should be excluded from the marital pot just as the Social Security was.
Thus, hypothetical Social Security offsets were born where a portion of the government pension was excluded from division as a marital asset. The logic of Cornbleth quickly moved to other states with Ohio amongst the first with Stovall v.Stovall21.
The issue of the GPO was implicit in Cornbleth, i.e. marital money went into acquiring the Social Security benefit of one party which the other party would not share in. The GPO issue was front and center in Stovall. Akron, Ohio attorney Randal Lowry stressed how unequal the property division was when it ignored the Social Security component of the government plan participant when it tossed the entire pension into the marital pot yet ignored the Social Security of the other spouse.
Thus, Cornbleth and Stovall avoided the federal preemption issue. And the Illinois case of In re Marriage of Roberts points to the absolute absurdity of courts which refuse to factor Social Security into decisions.
Review: The Huge Impact on Spousal and Child Support
Again, the impact on spousal and child support obligations is seismic. And the law is retroactive to January of2024 which will result in some huge payments to state plan participants under the WEP and even larger ones under the GPO. A state plan participant in pay status who received the full reduction in 2024 under the WEP will see the$7,044 reduction ($587 loss each month X 12) eliminated. In 2025 the same state plan participant will see the Social Security benefit increase $7,356 for the year ($613 X 12).
These WEP enhancements will likely flow more to police and firefighters who because of their work schedules are more likely to have engaged in covered Social Security employment.
The elimination of the GPO will dramatically eclipse those figures in many cases. A now eligible state plan participant previously married to a high earner will quality for age 62benefits exceeding $16,260 for 2024 (1,355 X 12).
However, a common estimate is that the change will amount to about $360 a month for most impacted individuals.
Over the coming weeks QDRO Group will be offering attorneys more guidance on this rapidly evolving legal landscape and is in the process of preparing detailed materials for a number of CLE presentations we will be doing around the country.
We also have a legal team developing separation agreement language for the various scenarios we have discussed.
1 The WEP or Windfall Elimination Provision reduced the Social Security benefit of an individual who has earned a government pension in a plan not covered by Social Security and has also earned a Social Security benefit under Social Security covered employment. That reduction could have been as large as $587 a month in 2024 and $613 a month in 2025.
2 The GPO or Government Pension Offset reduced the 50% independent spousal Social Security benefit as well as survivor benefits under a formula. The formula provides that for every three dollars one receives from the non-covered government pension one loses two dollars of the Social Security benefit.
3 See LA Dept. of Water v. Manhart, 435U.S. 702 (1978) and Arizona Governing Comm. v . Norris, 463 U.S. 1073(1983) where the U.S. Supreme Court found groups in violation of Title VII of the Civil Rights Act of 1964 because, in essence, they penalized women for living longer. This is another reason besides the speculative nature of courts predicting the date of death for individuals that most courts shy away from valuing survivor benefits concluding that if one spouse lives longer than the other, so be it. It is the court’s job to equalize marital benefits while they are both alive, summarizes that perspective.
4 Keep in mind that Social Security is not like military pensions where direct payments are only available if 10 years of credited service under the plan overlap with the marriage. Under Social Security spouses of 10 years – and not one day less – are eligible for the 50% independent spousal benefit or the 100% widow or widower’s benefit if they have not remarried (subject to several additional qualifiers which we will detail in the article). This is true even if the former spouse never worked under Social Security covered compensation during the marriage.
5 https://www.ssa.gov/benefits/retirement/social-security-fairness-act.html
6 https://www.ssa.gov/benefits/retirement/social-security-fairness-act.html
7 United States Code: 28 U.S.C. Appendix, Rule 60 (B); Title VII of FRCP.
8 James Myers and Jessica Trease, “The Coming Avalanche of 60 (B) Motions Because of the Social Security Fairness Act” February, 2025 on the QDRO Group website (qdrogroup.com).
9 Number 4 under Federal Rule of Civil Procedure60 (B).
10 We used the term “retirement recipient” rather than “pension holder” because participants in defined contribution plans in lieu of state pensions also faced WEP and GPO reductions.
11 Howell v. Howell, 581 U.S. 214, 137S. Ct.1400, 197 L. Ed.2d 781 (2017).
12 The authors agree with Brett R. Turner, author of Equitable Distribution of Property, 4th Ed. available on Lexis that the entire foundation of the federal preemption is poorly reasoned and flowed more from a political decision to prevent an American Communist from receiving government benefits than a reasoned approach such as adopted by dissenting Justice Black.
13 In re Marriage of Roberts, 53 N.E. 3d 17 (Ill. App. 2015).
14 Caitlin Steiner and David Kelley, Were Mueller and Crook “A stabin the back” of community property law?
15 In re Marriage of Roberts, 53 N.E. 3d 17 (Ill. App. 2015).
16 It is well worth reviewing the 1995 Iowa Supreme Court case of In re Marriage of Boyer, 538 N.W. 2d that concluded: “The question here is whether, in ordering the division of marital property, a court may consider the fact that one party can anticipate greater social security benefits upon retirement. We agree that a court cannot "divide" the anticipated benefits or establish any exact setoffs on such a basis. But we think a state court is not required to pretend to be oblivious of the fact that one party … expects benefits that will not be enjoyed by the other. This contrasting economic security can be weighed as a factor in fixing the economic terms of a dissolution decree. We vacate a contrary holding by the court of appeals. We modify and affirm the judgment of the district court.”
17 42 U.S.C. 402(k), 402(b)(2), 402(c)(2), 402(e)(2)(A), 402(f)(2)(A) for the GPO and 42 U.S.C. 415 for the WEP.
18 Moon v. Shalala, No. 93-CV-1267 RWS, 1994 WL 740899 (N.D.N.Y. Oct. 4,1994) where the applicant fell 18 hours short of the required 10 years.
19 Cornbleth v. Cornbleth, 397 Pa. Superior Ct. 421(1990), 580 A.2d 369.
20 Fleming v. Nestor, 363 U.S. 603 (1960).
21 Stovall v. Stovall, 1992 Westlaw 236770(Ohio Ct. App. 9th District, Summit County (1992).
