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In re Marriage of McClure.

2024 COA 70. No. 23CA1338. Post-dissolution Proceedings—Modification of Spousal Maintenance—Gross Income—Social Security Benefits—Anti-assignment Provision.

July 3, 2024

The parties’ marriage was dissolved, and as part of the permanent orders, the court ordered husband to pay wife $2,500 in monthly maintenance for an indefinite term. Husband filed a verified motion to terminate or modify maintenance 18 years later, asserting a substantial and continuing change of circumstances because he had reached full retirement age and his only income was his monthly social security retirement benefit. After a hearing, the district court found that there was a substantial and continuing change of circumstances that made husband’s monthly maintenance obligation unfair, but the court found that wife could not independently support her reasonable needs and that husband could continue paying some form of maintenance while also meeting his own needs. Accordingly, the court reduced husband’s maintenance obligation to $700 per month. Husband moved for post-trial relief arguing that the Social Security Act’s anti-assignment provision, 42 USC § 407(a), preempted the district court from awarding spousal maintenance to the extent that it required him to use his social security retirement benefits to make the payments. The district court denied the motion.

On appeal, husband contended that the modified $700 monthly maintenance obligation violates the anti-assignment provision because it effectively requires him to pay wife about $400 per month from his social security income. He maintained that the anti-assignment provision preempts a state court from indirectly distributing or dividing social security benefits as part of a new maintenance obligation. CRS § 14-10-114(8)(c)(I)(P) provides that social security benefits are included in the definition of “gross income” for purposes of determining a maintenance award. While it is well established that the anti-assignment provision prevents a state court from distributing a party’s social security benefits as part of a marital property division, in 1975 an exception to the anti-assignment provision was created in 42 USC § 659(a) to allow the use of legal process to collect child support and alimony. Further, 5 CFR § 581.102(g), which implements § 659(a), defines a “legal obligation” for purposes of processing garnishment orders to include “current as well as past due alimony and/or child support debts.” This refutes husband’s assertion that the § 659(a) exception applies only to past due maintenance obligations, and husband failed to cite legal authority holding that the § 659(a) exception is limited to past due maintenance obligations. Accordingly, a maintenance award that effectively results in the payor using a portion of his monthly social security retirement benefits to pay the other party does not violate the anti-assignment provision, and the district court may consider social security retirement benefits as included in the payor’s gross income when determining maintenance. Therefore, the district court did not violate the anti-assignment provision.

The order was affirmed.

The full opinion is available at

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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