January 2020
Was it consistent with the Dissolution Act3 that after a 37-year marriage a Peoria court4 awarded $1,310 a month in retirement income to Linda, a teacher, while David, a disabled pharmacist, received $3,414.90? The disparity occurred because Linda’s Teachers’ Retirement System Pension was split while David’s Social Security benefit was ignored during the property division after successfully arguing that a federal preemption against consideration of Social Security during a divorce existed. This is a position the Illinois supreme court adopted in 2004, In re Marriage of Crook5, and controversially reinforced in 2015, In re Marriage of Mueller.6
The majority in the Illinois supreme court in Mueller would have one believe that factoring Social Security into property divisions -- and perhaps even spousal support calculations -- would do significant harm to an essential federal interest even though such decisions “paint an unrealistic picture of the parties’ future finances.”7 The court objectified its apparently inequitable property division as an inevitable result of Congress’ intent that Social Security never enter the divorce arena. We will examine how the dissenting view of Justice (now Chief Justice) Anne Burke in Mueller was far better reasoned and far more in alignment with the national tide of cases and the intent of Congress as manifested in other legislation.
Mueller8 was an even more expansive assertion of federal preemption of consideration of Social Security in divorce than Crook.9 That Mueller was overreaching was a concern voiced by Judge McDade in the Peoria case of In re Marriage of Roberts.10 When confronted with the stark reality of a $2,104.90 difference in monthly income between the parties, McDade agreed with the two other judges in awarding spousal support to Linda. Ironically, Judge McDade agreed that Social Security may not be directly divided – a point on which literally all courts and writers in the field agree – “or used as a basis for a offset during state dissolution proceedings.”11 (Italics in original.) However, he was “disquieted by the breadth of the concluding paragraph of Mueller’s majority decision.”12
As you read that concluding paragraph you will likely share his concern:
A more coherent approach is to adhere to Crook, and Hisquierdo [the landmark U.S. Supreme Court case seen as establishing the federal preemption of Social Security consideration in divorce], and hold that Congress intended to keep Social Security benefits out of divorce cases. Failing to consider Social Security benefits may paint an unrealistic picture of the parties’ future finances, but “it is not the province of this court to interfere with the federal scheme, no matter how unfair it may appear to be.” Crook, 211 Ill. 2d at 452. The decision of the trial court not to consider Shelley’s Social Security benefits and reduce Christopher’s pension benefits by hypothetical Social Security benefits was correct.13
Keep in mind that the Roberts court was looking at a property division that left Linda with a monthly deficit of $2,700 a month in living expenses while David had a monthly surplus of $1,100. Clearly, the three judges did not construe the real-world property division they were examining as just having the appearance of being “unfair.” Should the Roberts court have simply ignored the income disparity despite the specific directions to the contrary in the Dissolution Act?
The Mueller majority made several controversial points that are at odds with concurrent decisions in other states. The main one was that the federal preemption did not allow Illinois courts to shield a portion of state pensions that are Social Security substitutes as separate property by excluding that hypothetical component just as Social Security was excluded for the spouse working under covered compensation.
This hypothetical Social Security offset approach has gained significant traction nationally since it was first argued by a thoughtful Pittsburgh attorney, Eric C. Rome, in 1990.14 Rome recognized that the fear of a federal preemption had kept differing Social Security entitlements out of being a divorce factor in any way. Having divorce courts wear this preemption blinder placed his client, Terry Cornbleth, a Civil Service Retirement System (CSRS) participant, on an unlevel playing field. His entire CSRS pension was thrown into the marital pot -- including the portion which was a Social Security equivalent -- while his spouse, Catherine Cornbleth, had her Social Security excluded from the marital pot. His answer to level the playing field was elegant and profound in its simplicity. He merely had his client’s wages entered on Social Security software to see how much of his CSRS pension was in lieu of Social Security. Thus, hypothetical offsets were born and the word spread fast. In fact, one of the authors of this article was the expert in the first Ohio case in 199115 that adopted the hypothetical approach and scores thereafter.
Other courts have recognized that deciding what is separate property is the province of state courts notwithstanding the federal preemption of Social Security. It was revealing that the Mueller court admitted that while the “valuation method proposed by Mack [the expert retained by the police officer to determine how much of his police pension would have been Social Security if working under covered compensation] is not strictly speaking an offset”16 it violated Crook because it created “parallel benefits for Christopher that would affect the division of marital property.”17 This extraordinary leap of logic was seized upon by Chief Justice Anne Burke in her dissent which was joined by Justice Karmeier.
This article will review how recent court cases including U.S. Supreme Court cases, leading writers in the field and Congressional intent are at odds with Crooks and Mueller. At the very least, the authors find that Illinois courts must continue to use spousal support orders as a safety valve to prevent “unrealistic” or “unfair” property divisions from blowing up the lives of those involved.18 In fact, we agree with In re Marriage of Dea that it is a likely abuse of discretion to turn a blind eye to current Social Security benefits in fashioning appropriate maintenance awards.
However, spousal maintenance orders do not adequately address the damage done to the equitable distribution of property in most cases. Only a change in course by the Illinois supreme court will do that.
Clearly, the Social Security Act does contain broad anti-alienation language, which some state courts read to mean that they cannot take Social Security benefits into account in any way for the purpose of equitable division. However, we will demonstrate that this is inconsistent with other Congressional actions. When it comes to retirement income, leaving former spouses out in the cold is a practice that Congress has repudiated on several occasions and even when they did some damage to state property distribution as in Howell v. Howell,19 they pointed towards spousal support as a way for states to ameliorate the damage done both to the individuals and to the equitable powers of the state. Clearly, it strains credibility to also believe that Congress intended to neuter state domestic relations courts with an expansive understanding of a federal preemption surrounding Social Security which would even prevent its consideration in spousal support after its passage of laws to specifically allow Social Security benefits to be invaded for child and spousal support.
In addition to the Burke dissent, particular interest will be paid to 2014and 2015 decisions in Kentucky20 and Oregon21 which adopted the hypothetical Social Security offset approach, along with recent U.S. Supreme Court cases which undercut the expansive interpretation of an overriding federal preemption in divorces involving military pensions or Social Security.
Federal preemption issues are complex, and decisions often seem more deeply rooted in underlying philosophical and political ideology than in the law. For example, Fleming v. Nestor,22 the first U. S. Supreme Court case dealing with Social Security, was rightly criticized by dissenting Justice Black as being more founded in a political desire to keep a Communist from receiving Social Security than from observing sound constitutional law. At other times the high court has persisted in employing the same rationale for federal preemption that Congress had previously repudiated. Most of all, while Supreme Court cases such as McCarty v. McCarty,23 Hisquierdo v. Hisquierdo24 and Mansell v. Mansell25 demonstrated a keen awareness of potential dangers in sharing federally distributed benefits in divorce, they provided little insight into how damaging their rulings would be to courts dealing with couples like Linda and David Roberts.
However, attorneys in the field were not nearly so oblivious to the damage done to DR courts. J. Repply26 doubted that Congress intended the Railroad Retirement Act to be a “stab in the back” of American community property as Hisquierdo insisted it was. The Hisquierdo Court held that federal retirement benefits under the Railroad Retirement Act could not be divided during a divorce proceeding or offset against other marital property.27 Congress, quite to the contrary, has not expressed such a contempt for the property rights of nonparticipant spouses, especially in the light of the Employee Retirement Income Security Act (ERISA) and the Retirement Equity Act (REA) creating QDROs.
Congressional concern over spouses, former spouses and family members has been evidenced numerous times. When the U.S. Supreme Court decided McCarty, which held that military pensions were not divisible marital property, it was overturned by Congress at light speed (less than two years) with the passage of the Unformed Services Former Spouses Protection Act28 (USFSPA). Interestingly, the USFSPA repudiated the underlying preemption logic used by the Court. Strikingly, however, the Court has continued to use the same flawed logic that Congress struck down in its entirety with the USFSPA in its future decisions. For example, in Mansell v. Mansell,29 the Court held that federal military disability benefits paid in lieu of military retired pay are not divisible under state domestic relations law. Because USFSPA did not explicitly include disability pay in the definition of “disposable retired pay” that could be divided under state domestic relations law, the Court reasoned that such disability pay could not be divided.30 Years later, Howell v. Howell31 followed Mansell inholding that disability pay cannot be divided, even where retirement pay has been waived to obtain it, and that retirement pay was previously ordered to be divided between the servicemember and his ex-spouse.
The federal preemption concept stems from the Supremacy Clause of the United States Constitution which states that federal laws “shall be the supreme law of the land… and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”32 This means that when state law and federal law conflict, federal law will always prevail.33 This concept applies not only to legislation, but also executive branch actions and decisions made by courts.34 When it comes to federal preemption, however, it can be difficult to tell exactly what the federal government intended to prohibit the states from doing.
State courts that refuse to view Social Security as a factor in the division of marital property claim they are preempted from doing so by Congress. As the Supreme Court of Illinois pointed out in In Re Marriage of Mueller, “Section 402(b)(1) of the Social Security Act provides that divorced persons are entitled to specific portions of their former spouses' benefits. 42 U.S.C.§ 402(b)(1) (2000). Section 407 provides that Social Security benefits are not otherwise alienable:
‘The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.’”35
Note that the language employed such as “execution, levy, attachment, garnishment, bankruptcy or insolvency law” certainly is more focused on outside creditors than family members. The “specific portions” of former spouses’ benefits the Mueller court is referring to do not apply to all spouses, however. In some cases, a divorced spouse has a clear statutory right to benefits under the Social Security Act by virtue of having been married to an individual with a Social Security benefit.36 Such a statutory right exists where a couple was married for 10 years or more prior to divorce, and one spouse has reached 62 years of age, is unmarried, and is entitled to a Social Security benefit less than half that due to their former spouse.37 In such cases, the lesser-earning spouse will receive Social Security benefits in an amount equal to half of their ex-spouse’s monthly Social Security benefits.38 The Mueller court would have you believe that Congress’s specific provision for former spouses that fit the above profile should be read to mean that any other consideration of Social Security benefits when it comes to former spouses is preempted.39
What was Congressional intent for state domestic relations courts when Section 402(b)(1) and Section 407 of the Social Security Act were passed? On this there is only one clear consensus of all courts: Social Security benefits cannot be directly divided between ex-spouses.40 That is, one divorcing spouse cannot be required to actually give a portion of his or her Social Security benefits to the other spouse as part of a property settlement in a divorce case.41
Apart from this narrow area of agreement, states differ wildly in their interpretation of Section 407 and Section 402(b)(1). As Michael Flannery points out in his article, Social Security, Divorce, and the Scope of Federal Preemption, there are at least six different interpretations of the Act and what it allows state courts to consider when it comes to Social Security and the division of property in divorce cases.42 He lists the different ways state domestic relations courts handle Social Security benefits in terms of property division as follows before calling for Congress to bring some uniformity to the chaos:
(1) offsetting any marital property other than Social Security benefits with the value of actual Social Security; (2) offsetting retirement benefits received in lieu of Social Security with a hypothetical Social Security value;(3) offsetting retirement benefits received in lieu of Social Security with actual Social Security value; (4) prohibiting offsetting; (5) considering Social Security benefits as one of many factors relevant to the equitable division of marital property; and, (6) totally preempting the court from considering Social Security benefits in any way in determining an equitable division of marital property.43
Illinois courts, along with courts in Alaska, Nevada, and Vermont, take view number six.44 Note, however, that spousal maintenance awards are not necessarily part of that total preemption.45 These courts hold that Congress “intended to keep Social Security benefits out of divorce cases”46 altogether, meaning that Social Security benefits will not be considered in anyway during in the division of property upon divorce, “no matter how unfair it may appear to be.”47 This logic extends even to when state courts turn a blind eye to the actual Social Security and only examine how much of the state pension would have been a Social Security benefit if the worker was employed under Social Security covered compensation – the hypothetical Social Security offset approach.
Many state courts have looked to the decisions in Hisquierdo, McCarty and Mansell to determine their treatment of Social Security benefits in divorce cases. Illinois courts, as previously mentioned, have taken the position that Social Security Benefits cannot be taken into account in divorce cases. While all states agree that the benefits cannot be directly divided, Illinois courts also prohibit the various methods of offsetting Social Security with other retirement benefits or marital property.
Decided in 2004, In re Crook48 saw the Supreme Court of Illinois relying heavily upon Hisquierdo in determining that Social Security benefits may not be divided or offset as part of a divorce proceeding. In that case, a school secretary and a farmer had been married for 33 years, with the farmer earning Social Security benefits throughout the marriage for his time working on the farm.49 The school secretary, on the other hand, was ineligible for Social Security benefits as a state employee.50 The secretary argued that her pension should not be divided equally between herself and her husband. Instead, she argued, the court should consider her husband’s $850 per month in anticipated Social Security benefits in determining the amounts he should receive from her retirement plans.51 The Court rejected this argument, using Hisquierdo as a guide:
It is well settled that the analysis and reasoning employed by the United States Supreme Court in Hisquierdo has application to cases, such as that at bar, involving retirement benefits flowing from the Social Security Act… In this court's view, Hisquierdo establishes two important points: Social Security benefits may not be divided directly or used as a basis for an offset during state dissolution proceedings. Although the courts in a number of other states have permitted a trial judge to consider a spouse's anticipated Social Security benefits as one factor, among other, in making an equitable distribution of the distributable marital assets, we reject that analysis.52
Other decisions followed, such as In re Marriage of Mueller, again disallowing courts to consider Social Security benefits in divorce cases.53 Using Crook and Hisquierdo as a guide, the Supreme Court of Illinois again stated that “Congress intended to keep Social Security benefits out of divorce cases.”54 Since then, other Illinois courts have followed Mueller and Crook in prohibiting the consideration of Social Security benefits in divorce cases.55
In refusing to consider Social Security benefits when dividing marital property in divorce cases, Illinois courts turn state employees into second class citizens claiming that was the intent of Congress – an issue we will presently discuss. We say “second class” advisedly and remind you of Linda Roberts’ tenuous financial situation after the property division described in the first paragraph of this article but before the maintenance determination. However, the language of the Social Security Act and the past actions of Congress to remedy the unfair division of retirement assets are difficult to reconcile with the total preemption viewpoint.
As we noted in our introduction, even the Mueller and Crook courts recognize the unfairness of leaving Social Security benefits out of the division of marital property. For example, the majority opinion in the Mueller case references this issue, stating that “failing to consider social security benefits may paint an unrealistic picture of parties’ future finances.”56 The Mueller majority then went on to quote Crook in stating that “it is not the province of this court to interfere with the federal scheme, no matter how unfair it appears to be.”57
Justice Burke, dissenting in the Mueller case, also pointed out how unfairly former spouses are treated when courts refuse to consider Social Security benefits in the division of marital property. Justice Burke explained that in asking the court to offset the portion of his pension that is provided in lieu of social security, Christopher Mueller was simply asking to be treated fairly.58 “Christopher's request, ”Burke stated, “is simply that he be treated similarly to Shelley—no better and no worse—during the dissolution proceeding.”59
It would be political suicide for an elected representative to publicly defend the property division of Linda and David in the Roberts case, but the majority in Crook and Mueller would have you believe that it was the intent of Congress despite numerous examples of Congressional effort to overcome inequitable property divisions in other legislation.
The language of the Social Security Act does not support the view that Congress intended for state courts to ignore Social Security benefits when dividing marital property in divorce cases; at least, it does not when it is read and analyzed in the way required by United States Supreme Court case law. As Justice Burke points out in her dissenting opinion in Mueller, “the regulation of domestic relations, including the distribution of marital property during dissolution proceedings, is traditionally the domain of state law. For this reason, there is a ‘presumption against preemption’ in the area of domestic relations law.”60 Therefore, she explains, “it follows that the burden to establish conflict preemption in this area is high: it must be shown that the challenged state action does ‘major damage to clear and substantial federal interests before the Supremacy Clause will demand that state law will be overridden.’”61
Justice Burke then goes on to explain why the offsetting of property or other retirement benefits in lieu of social security does not impinge upon a federal interest at all.62 She reiterates the language of Section 407 of the Social Security Act as prohibiting the use of “legal process” to “levy, attach, garnish or execute on those benefits.”63 Based on the plain language of the Act, Burke claims, and we agree, that the federal interest behind Section 407 is to “ensure that Social Security Benefits are received by the participant. No other federal interest is at issue.”64 As Justice Burke makes clear in her dissenting opinion, offsetting “hypothetical” social security values in dividing a public pension plan doesn’t prevent the spouse who is participating in Social Security from receiving those benefits.65 Therefore, such an offset does not disturb the federal interest at play, and is not preempted by the Social Security Act.66
In the Mueller case, then Justice Burke was specifically arguing against a majority that held the offsetting of “hypothetical” social security benefits was preempted by federal law. But her salient point was that because the actual Social Security was never diverted from the covered participant, there was no violation of the preemption.
In her dissenting opinion in Mueller, Justice Burke also took issue with the way that the court relied on earlier Illinois case law, Crook, in coming to its conclusion. As previously mentioned, Crook dealt with a situation in which the spouse who was not participating in Social Security wished to have the value of her pension offset against her husband’s actual expected Social Security benefits. The Crook court held that such an offset was preempted by federal law.67 However, Burke pointed out the majority in Mueller acknowledged that adjusting Mr. Mueller’s pension value by subtracting the amount of his pension that was earned in lieu of Social Security (or his “hypothetical” Social Security benefit) was not “strictly speaking an offset.”68 Therefore, Justice Burke argued, the proposed division did not violate Crook’s holding (based heavily on Hisquierdo) that “Social Security benefits may not be divided directly or used as a basis for an offset during state dissolution proceedings.”69 Thus, even if the Crook court was correct in relying on Hisquierdo to determine that offsetting actual Social Security benefits is not permitted(although one must keep in mind that Hisquierdo dealt with the Railroad Retirement Act, which is different from the Social Security Act and should not be treated identically),70 that holding does not prohibit the court from considering the portion of a public pension earned in lieu of Social Security.71
In addition, United States Supreme Court case law does not prohibit the consideration of Social Security benefits when dividing marital property. As previously mentioned, Hisquierdo’s holding applies to retirement benefits obtained under the Railroad Retirement Act. While structured similarly to railroad retirement benefits, Social Security benefits operate under a different type of anti-alienation clause.72 The Social Security act does not forbid “anticipation” of benefits in the same way that the Railroad Retirement Act does, and the Hisquierdo court “concentrated particularly on the phrase ‘anticipation’” in crafting its decision.73
Other Supreme Court cases regarding federal preemption in the context of federal benefits, such as McCarty (which was overturned by later Congressional action), Mansell, and Howell focused on military retirement and disability pay, not Social Security.
Even if the reasoning behind the military retirement and disability cases applies to Social Security, it is worth noting that the Supreme Court acknowledged in Howell that consideration of federal benefits (specifically military retirement and disability pay) is not entirely prohibited in the area of property division. Writing for the Court, Justice Breyer admitted “the hardship that congressional preemption can sometimes work on divorcing spouses.”74 He then went on to write 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.”75 Whether such actions by state courts are impermissible, Breyer noted, was not decided by the Howell court, for such methods of considering military benefits were not at issue in that particular case.76 Thus, at least some consideration of military retirement and disability pay by domestic relations court has not been held by the Supreme Court to be forbidden by way of federal preemption.
One might also argue that, even if applicable in the context of Social Security benefits, the Hisquierdo and McCarty line of cases are incorrectly decided. Brett Turner, in his treatise Equitable Distribution of Property, argues just that.77 He describes the dissenters in Hisquierdo as having “by far the better of the argument.”78 He argues that the state’s interest in protecting former spouses was “significantly” more important than the federal interests involved, and that “the Court should have held that the federal interest was not sufficiently important to meet the implied preemption test.”79 Turner also makes similar observations about McCarty and Mansell, calling the dissenting opinions “much better reasoned than the majority opinion.”80 The authors strongly concur with that position.
Another indication that Congress did not intend such total preemption of Social Security benefits was the previously mentioned repudiation of McCarty. As mentioned, less than two years after the decision was rendered prohibiting the division of military retired pay, Congress passed the Uniformed Services Former Spouses Protection Act.81 The Act corrected the McCarty decision by making it clear that “disposable retired pay” would be subject to state property division laws.82
Similarly, Congress has repudiated the idea that the Employee Retirement Income Security Act (ERISA) preempts state domestic relations courts from considering qualified private retirement plans in the property division stage of divorce. Like the Social Security Act, ERISA imposes a broad prohibition against the use of legal or other processes to assign or alienate benefits within its purview, stating that “Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated” with a few exceptions for things like plan administrative costs or certain participant loans.83 In addition, ERISA explicitly provides that its provisions “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b)of this title.”84
Prior to 1984, many courts found these provisions to be confusing; did these anti-alienation provisions preempt state domestic relations law regarding the division of property between former spouses?85 If so, did this mean it was unconstitutional for state courts to equitably divide pension benefits pursuant to a domestic relations order?86
Of course not. Congress clarified this by passing the Retirement Equity Act of 1984(REA), which alleviated the confusion and disagreement amongst state domestic relations courts as to whether they were preempted from dividing private sector retirement benefits between spouses pursuant to a divorce or for family obligations such as child support.87 The Act allowed for Qualified Domestic Relations Orders (QDROs) to be drafted, explaining the terms of the division. If the QDRO meets all of the guidelines required by law, the plan administrator must accept it.88 The REA, which contained several additional provisions regarding surviving spouse benefits and pension eligibility, was intended to increase equity and fairness in the world of private-sector retirement.89 Clearly, equity to divorced spouses was of great concern to Congress. Their intentions are not likely to be significantly different when it comes to Social Security benefits.
Courts in some states, including Kentucky and Oregon, have recently taken the approach Christopher Mueller requested in Mueller, allowing the amount of a state pension earned “in lieu of” Social Security to be subtracted from the total benefit amount under the state pension.90 The amount of the public pension plan earned in lieu of Social Security is determined by calculating the amount of Social Security benefits the public employee would have been entitled to if working in the private sector, and subtracting that amount from the value of the state pension plan prior to dividing the plan between the spouses.91
The most carefully argued of the recent cases and especially appropriate for our discussion was the Oregon supreme court case of In re Marriage of Herald and Steadman.92 The reason we focus on this case is that it involved a high court reversing itself after having previously adopted a total preemption viewpoint that it now recognized as “too sweeping.”93
We quote the opening paragraph of the decision because it clearly articulates a position we wish the majority of the Illinois supreme court to move to:
In Swan and Swan,301 Or. 167, 176,720 P.2d 747(1986),this court, applying preemption principles, stated that it violated federal law for "[f]amily courts, in making a division of property, [to] consider Social Security benefits." The question presented in this case — where one spouse is a Social Security participant and the other is not — is whether federal law forbids a division of property by which the value of retirement benefits belonging to the nonparticipating spouse is reduced by the present value of hypothetical Social Security benefits to which that spouse would have been entitled if she had been a Social Security participant. Because we conclude that the trial court did not violate federal law by" considering" Social Security benefits in that way, we affirm. In doing so, we clarify our above-quoted statement in Swan, recognizing that it was too sweeping.94
In Shown v. Shown, the Court of Appeals of Kentucky also adopted a hypothetical Social Security offset approach in circumstances similar to Mueller. Shown dealt with the division of retirement benefits pursuant to the divorce of a public school teacher and a dental assistant.95 While the dental assistant earned Social Security benefits along with an IRA, her husband was not eligible to participate in Social Security as a public employee covered under the Kentucky Teachers’ Retirement System.96 The Court recognized that part of the teacher’s pension was earned in lieu of Social Security, and explained its logic in light of the Social Security Act:
Federal statute prohibits the division of or assignment of a person's Social Security benefits in 42 U.S.C.A. Section 407, but to divide Robert's teachers' retirement without regard to its substitution for Social Security effectively divides his ‘social security’ benefits anyway, leaving Teresa's Social Security benefits untouched, and unconsidered.97
The authors of this article believe this is a more prudent approach to a fair and equitable distribution of marital property than the stance currently taken by the supreme court in Illinois. However, as we have previously discussed, Illinois has already started tiptoeing along the right path; in several cases including In re Marriage of Roberts, Illinois courts have held that Social Security benefits may be considered when awarding spousal maintenance.98 As Paul Feinstein noted, the Roberts decision is a step in the right direction toward a more popular school of thought regarding the consideration of Social Security benefits when awarding spousal support: “[i]t appears that the court in Roberts followed the majority view from other states. The Illinois Supreme Court has now spoken on this issue.”99
But evening out streams of income after a long-term marriage for an older couple with a maintenance award does not adequately address the underlying problem facing most divorcing public employees who are younger. Spousal support is certainly not the recommended – or purely legal – way of addressing an inequitable distribution of property.
There is an obvious need for the Illinois supreme court to reverse its decisions in Crook and Mueller to reach a similar position as the Oregon supreme court recognizing that a total preemption of the consideration of Social Security in the property phase of a divorce is a vanishing viewpoint – for many good reasons. Perhaps the elevation of the author of the dissenting view in Mueller to Chief Justice may prove efficacious to the public employees of Illinois as well as the state’s domestic relations courts play who play such an essential role in delivering equity to divorcing parties.
