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    "judges": [
      "Judges Wells and Cozort concur."
    ],
    "parties": [
      "GAYE H. CRUISE, Plaintiff v. BILLY H. CRUISE, Defendant"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nFederal law precludes North Carolina from distributing Social Security under North Carolina\u2019s Equitable Distribution statute. The test for pre-emption has been set out by the U.S. Supreme Court:\nOn the rare occasion when state family law has come into conflict with a federal statute, this Court has limited review under the Supremacy Clause to a determination whether Congress has \u2018positively required by direct enactment\u2019 that state law be pre-empted. Wetmore v. Markow, 196 U.S. 68, 77, 49 L.Ed. 390, 25 S.Ct. 172 (1904). A mere conflict in words is not sufficient. State family and family-property law must do \u2018major damage\u2019 to \u2018clear and substantial\u2019 federal interests before the Supremacy Clause will demand that state law be overridden. United States v. Yazell, 382 U.S. 341, 352, 15 L.Ed. 2d 404, 86 S.Ct. 500 (1966).\nHisquierdo v. Hisquierdo, 439 U.S. 572, 581, 59 L.Ed. 2d 1, 11, 99 S.Ct. 802, 808 (1979).\nIn Hisquierdo the husband appealed the wife\u2019s offset award of presently available community property to compensate her interest in petitioner\u2019s expected Railroad Retirement Act benefits. The Hisquierdo court held that the Federal Statute pre-empted an award based on the wife\u2019s interest in the husband\u2019s Railroad Retirement benefits under California community property law. Hisquierdo. That ruling controls the decision in this case. In its analysis the Court analogized the Railroad Retirement Act to the Social Security Act and relied on an anti-assignment section of the Railroad Retirement Statute. Id. at 585, 59 L.Ed. 2d at 13, 99 S.Ct. at 810. See 45 U.S.C. \u00a7 231m. The anti-assignment section of the Railroad Retirement Act is quite similar to one included in the Social Security Act.\nThe Social Security Act provides a comprehensive scheme for how Social Security benefits are to be awarded divorced spouses. Since 1977 a divorced wife has been eligible to receive Social Security benefits on account of her former spouse if she had attained age 62 and also had been married to her insured spouse for at least 10 years. Cahoon v. Heckler, 574 F. Supp. 1021, 1022 (D. Mass. 1983), aff\u2019d, 740 F. 2d 953 (1st Cir. 1984). See Social Security Coordinator \u00a7 24044 (1986 & Supp.). The current provision is summarized below:\nA divorced husband or a divorced wife of an individual entitled to social security retirement or disability benefits is entitled to spousal benefits if he or she:\n(1) applies for such benefits;\n(2) is at least 62 years old;\n(3) is not entitled to his or her own primary benefit in an amount equal to or greater than one-half due his or her spouse; and\n(4) is not married.\n\u00a7 24280 Social Security Coordinator 1986. See 42 U.S.C. \u00a7 402(b)(1), \u00a7 402(c)(1), \u00a7 416(d)(1).\nIn addition to the provisions cited above which specifically describe the entitlement of a divorced spouse to a worker\u2019s benefits the Act prohibits assignments of benefits:\nThe right of any person to any future payment under this title shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this title shall be subject to execution, levy, attachment, garnishment, or other legal process . . . [emphasis added].\n42 U.S.C. \u00a7 407(a).\nCongress has made an exception to \u00a7 407(a) in 42 U.S.C. \u00a7 659(a) which allows that Social Security benefits \u201cpayable . . . to any individual . . . shall be subject ... to legal process brought for the enforcement, against such individual of his legal obligations to provide child support or make alimony payments.\u201d Congress has made it clear that property transfers which result from equitable distribution are not alimony. 42 U.S.C. \u00a7 662(c).\nThe federal statutory scheme is complete. It provides certain benefits for divorced spouses which are not dependent on the idiosyncrasies of each state\u2019s system of marital property law. Richards v. Richards, 659 S.W. 2d 746, 749 (Tex. Ct. App. 1983). The benefit payable to a divorced spouse of a covered worker does not reduce the benefit available to the worker. Id. See 42 U.S.C. \u00a7 403(a)(3). Division of Social Security benefits under North Carolina\u2019s Equitable Distribution Act would contradict the \u201cdirect enactment\u201d of Congress and do major damage to the uniform disbursement of Social Security benefits under the federal Act. Were the trial judge\u2019s order to be followed in this case, the wife would be receiving benefits without making application to the Social Security system, before she was 62, and regardless of the amount of her own benefit. The trial judge\u2019s order that the husband share one-half in the wife\u2019s anticipated benefits contradicts the Supreme Court\u2019s rationale in Hisquierdo which specifically prohibits the anticipation of benefits. Hisquierdo at 589, 59 L.Ed. 2d at 15, 99 S.Ct. at 812.\nWhile we may be sympathetic to the plaintiffs position, Social Security benefits cannot be disbursed in an equitable distribution award. However, see In the Matter of the Marriage of Swan, 704 P. 2d 136 (Or. App. 1985); Valuation & Distribution of Marital Property \u00a7 18.03[3][f][v] (1988 Cum. Supp. p. 18-50).\nFor the reasons cited above the order of the trial court is reversed and remanded for further proceedings as required by this opinion.\nReversed and remanded.\nJudges Wells and Cozort concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Sperry & Cobb, by George H. Sperry, for plaintiff appellee.",
      "Shipman & Lea, by James W. Lea, III, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "GAYE H. CRUISE, Plaintiff v. BILLY H. CRUISE, Defendant\nNo. 885DC459\n(Filed 17 January 1989)\nDivorce and Alimony \u00a7 30; Social Security and Public Welfare 8 1\u2014 Social Security benefits not distributable under Equitable Distribution statute\nFederal law precludes North Carolina from distributing Social Security benefits under North Carolina\u2019s Equitable Distribution statute.\nAppeal by defendant from Tucker, Judge. Judgment entered 26 January 1988 in District Court, New Hanover County. Heard in the Court of Appeals 2 November 1988.\nPlaintiff wife and defendant husband were married on 18 April 1952. The parties separated on 1 August 1986. Defendant was married thirty-two of the thirty-six years that he was employed at Dupont, that is, eight-ninths of his career at Dupont. Defendant retired from Dupont in August of 1984. Plaintiff wife has worked only two years since 1958. The only child of the marriage is emancipated.\nAt the time of separation the defendant had vested in a pension plan at Dupont now worth a net value of $1,365.93 per month. Since 1 September 1987, the defendant has received monthly Social Security benefits of $679.00. The trial court awarded the plaintiff 4/9ths of the value of defendant\u2019s pension plan through Dupont, and 4/9ths of defendant\u2019s Social Security beginning 1 September 1987. Defendant appeals the award of four-ninths of his Social Security benefits to the plaintiff.\nSperry & Cobb, by George H. Sperry, for plaintiff appellee.\nShipman & Lea, by James W. Lea, III, for defendant appellant."
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  "file_name": "0586-01",
  "first_page_order": 616,
  "last_page_order": 619
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