Herald and Steadman

A court may consider the existence or absence, but not the value, of anticipated Social Security benefits as factors relevant to a just and proper division of property pursuant to ORS 107.105(f).

Husband appealed the trial court's use of a hypothetical benefit approach to determine that if wife contributed marital assets to the Social Security system her benefit would equal $391.41 per month. The trial court further found that in the interest of a just and proper division of property pursuant to ORS 107.105(1)(f) a consideration of the above hypothetical to reduce Husband's benefit via Wife's Civil Service Retirement System account was proper. In this case, the Court found that despite prohibition of considering the value of Social Security benefits in dividing property pursuant to the Social Security Act (42 USC 407(a)), a majority of courts found it proper to consider the existence or absence of Social Security benefits as a factor in dividing property and the hypothetical benefit model as a suitable mechanism to execute such a division. Thus, the Court held that considering Social Security benefits as a factor in determining a just a proper division of marital property does not violate the Social Security Act. The decision of the Court of Appeals and the judgment of the trial court are affirmed.