In re Marriage of Mueller
2015 IL 117876
| Ill. | 2015Background
- Shelley and Christopher Mueller married in 1992; Shelley paid Social Security taxes and expects full Social Security benefits; Christopher is a Springfield police officer who does not pay Social Security taxes and participates in a municipal police pension.
- Shelley filed for divorce in 2012; the trial court valued Christopher’s pension for property division and rejected a valuation adjustment based on hypothetical Social Security benefits Christopher would have received if he had participated in Social Security.
- Christopher proffered an expert (Mack) who calculated a reduction in his pension’s present value by estimating the Social Security benefit he would have had and treating that amount as an "in lieu of" offset (using SSA online calculator and WEP concepts).
- The trial court excluded Mack’s proposed adjustment as inconsistent with In re Marriage of Crook and federal law (Social Security protections), adopted Mack’s unadjusted present value, and awarded Shelley slightly over 35% of the pension; Christopher appealed.
- The appellate court affirmed (majority following Crook); one dissent would have allowed an offset to place spouses in parity. The Illinois Supreme Court granted leave and affirmed the lower courts.
Issues
| Issue | Plaintiff's Argument (Christopher) | Defendant's Argument (Shelley) | Held |
|---|---|---|---|
| Whether trial court erred in excluding Mack’s report/testimony | Expert valuation properly adjusts pension by hypothetical Social Security benefits to place parties in similar positions | Adjusting pension by hypothetical Social Security violates Crook and federal law; expert’s method effectively uses Social Security as an offset | Exclusion affirmed — valuation method rejected as inconsistent with Crook and federal law |
| Whether a nonparticipant’s pension may be reduced by hypothetical Social Security benefits the other spouse will receive | Use of hypothetical Social Security to apportion pension is permissible and achieves equitable division under §503(d) | Such consideration is preempted by 42 U.S.C. §407 and Crook; Social Security is not divisible or a marital asset | Court holds hypothetical Social Security may not be used to reduce pension value; Crook and federal law forbid the practice |
Key Cases Cited
- In re Marriage of Crook, 211 Ill.2d 437 (Ill. 2004) (Illinois Supreme Court: Social Security benefits may not be divided or used as an offset in dissolution proceedings)
- Hisquierdo v. Hisquierdo, 439 U.S. 572 (U.S. 1979) (Supreme Court: certain federal retirement benefits cannot be reached by state court process; preemption of state offsets)
- Flemming v. Nestor, 363 U.S. 603 (U.S. 1960) (Social Security benefits are noncontractual expectancies, subject to congressional change)
- Philpott v. Essex County Welfare Board, 409 U.S. 413 (U.S. 1973) (broad protection against creditors or legal process attaching Social Security payments)
- In re Marriage of Herald, 322 P.3d 546 (Or. 2014) (en banc) (held that, within limits, a court may consider presence/absence of anticipated Social Security benefits when dividing property — contrasting approach relied on by appellant)