Sunday, January 06, 2008

Nebraska Court of Appeals excludes a divorcing spouse's lump sum social security disability award from the couple's marital assets, but the divorce court judge should consider the social security payment when dividing the remaining assets that are marital. Dinges v. Dinges, A-06-239, 16 Neb. App. 275. Divorcing wife received a lump sum social security disability (SSDI) award of $27000 and the couple used the funds to purchase a modular home. The trial judge included the SSDI award in the couple's marital assets. The wife represented herself and also objected to the court's refusal to hold a pre-trial conference. Nebraska Court of Appeals overrules the wife's objections to the conduct of the trial judge but modifies the division of assets to exclude the social security award while still considering the award when dividing the remainder of the marital assets. "the trial court erred in stating that it “should consider the lump sum award received by wife as a marital asset subject to division in this dissolution proceeding” and then including the modular home, purchased post separation with the Social Security funds, in the marital estate. The Nebraska Supreme Court’s holding in Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47 (2006), precludes such treatment. However, we must also decide the issue discussed but not reached by the Webster court. We hold that while an offset of a Social Security award is prohibited by the anti-assignment clause of the Social Security Act (42 U.S.C. § 407(a) (2000) and the Supremacy Clause of the U.S. Constitution, a court may properly consider a spouse’s Social Security award in equitably dividing the marital property. We rely upon the “weight of authority” noted by the Webster court. See id. at 798, 716 N.W.2d at 55. Of course, such award is only one of many factors which we consider in our de novo review of the division of marital property."

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