42 U.S.C. § 659 (i)(3)(B)(ii) (2012) (emphasis added). See Depot v. Depot, 893 A.2d 995 , 999 (Me.2006) (“Congress has specifically excluded any similar payment obligation arising from any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses.”)
¶ 9. Relying, in turn, on these landmark Supreme Court decisions, state courts “have universally acknowledged that Social Security benefits are not marital property and are not subject to division in divorce actions.” Depot v. Depot, 2006 ME 25, ¶ 6, 893 A.2d 995; see generally B. Turner, Social Security: A 2005 Update, 17 No. 4 Divorce Litigation 53 (2005) (noting that “state courts are in uniform agreement [that] Social Security benefits cannot be treated as marital or community property”). Courts that have considered the issue have also generally concluded that anticipated Social Security benefits may not be used as an offset to compensate one spouse for the allocation of marital benefits to the other. See, e.g., Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47, 55 (2006) (“The weight of authority has concludedthat an offset of Social Security benefits is prohibited.”); Olson v. Olson, 445 N.W.2d 1, 11 (N.D.1989) (recognizing that “social security cannot be distributed or used as an offset in division of marital property”); see generally Turner, supra, 17 Divorce Litigation 53 (“State courts also agree that Social Security benefits cannot be divided indirectly by means of a direct setoff.”).
¶ 14 Other state courts that have considered this question agree, and "have universally acknowledged that Social Security benefits are not marital property and are not subject to division in divorce actions." Depot v. Depot, 2006 ME 25, ¶ 6 n. 2, 893 A.2d 995, 998 (citing, among others, cases from Arizona, Arkansas, Colorado, Nevada, Oregon, and Washington). Having concluded that the Social Security Act precluded the trial court from classifying and dividing Wife's social security benefits as a marital asset, we now consider Husband's argument that the trial court may consider Wife's expected social security benefits when fashioning an equitable property division. See, e.g., Kelly v. Kelly, 198 Ariz. 307, 9 P.3d 1046, 1047 (2000) (holding that Social Security benefits may not be divided as community property); Shelton v. Shelton, 339 Ark. 227, 5 S.W.3d 2, 4 (1999) ("Congress has excluded from its definition of marital property any benefits from social security.
[¶ 6] In Depot v. Depot, we upheld the principle that a court may consider Social Security benefits as a relevant factor in its equitable division of property. 2006 ME 25, ¶ 18, 893 A.2d 995, 1002. However, although the benefits may be considered a "relevant factor," a court may not attribute a present value to the benefits and may not distribute marital property in a manner that attempts to proportionately offset anticipated Social Security benefits.
The United States Supreme Court's holding in Hisquierdo v. Hisquierdo, 439 U.S. 572, 583-90 (1979), which protected these benefits from division, has been superseded by 45 U.S.C.S. § 231m(b)(2), which expressly permits equitable division of Tier 2 benefits. Hisquierdo is now read to protect only Tier 1 benefits from equitable division. Pearson v. Pearson, 488 S.E.2d 414, 422 (W.Va. 1997); see also Depot v. Depot, 2006 ME 25, ¶ 8, 893 A.2d 995. [¶8] The court also acted within its discretion in setting a timetable for Judith to organize her finances and make an equitable payment of $80,000 to John.
As the decision itself contemplated, its holding was superseded by Congress's subsequent enactment of the USFSPA, which increased the protections for former spouses of service members by expressly permitting state courts to treat military retirement pay as property subject to division upon divorce. See Mansell v. Mansell, 490 U.S. 581, 584, 587, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989); 10 U.S.C.S. § 1408(c)(1); see also Depot v. Depot, 2006 ME 25, ¶ 8, 893 A.2d 995 (acknowledging that “Congress has legislatively countermanded the holding [ ] in ... McCarty by making ... military retirement benefits subject to community property law”). [¶ 15] When a judgment is unambiguous, it “must be enforced in accordance with the plain meaning of the language in the judgment.”
benefits is strictly prohibited by federal law, such benefits "may be considered for alimony or spousal maintenance payments"); see also Davis v. Davis, 777 S.W.2d 230, 232 (Ky. 1989) (concluding that though courts are prohibited from dividing veterans' disability benefits as marital property, "if an inequity arises in an individual case, the trial court can resolve the problem . . . by making an appropriate award of spousal support and/or marital property"); White v. White, 568 S.E.2d 283, 286 (N.C. Ct. App. 2002) ("[N]either Mansell nor the FSPA prohibits a state court from considering a former spouse's federal disability payments (replacing a corresponding amount of retired pay) when configuring the distribution of marital property upon divorce."); Rothwell v. Rothwell, 775 S.W.2d 888, 891 (Tex. App. 1989) (finding no error where husband's veterans' disability benefit was considered in dividing income between the spouses, but no disability benefit was actually awarded to wife); cf. Depot v. Depot, 2006 ME 25, ¶ 15, 893 A.2d 995 (despite federal law prohibiting Social Security disability benefits from being considered marital property for distribution purposes at divorce, "[n]either the letter nor purpose of [federal law prohibiting attachment of Social Security benefits] compel courts to ignore expected annual Social Security benefit payments when undertaking their responsibility to equitably divide marital property"); Mahoney v. Mahoney, 681 N.E.2d 852, 856 (Mass. 1997) (noting that though Social Security old age benefits may not be included as part of the marital estate, "a judge may consider a spouse's anticipated Social Security benefits as one factor, among others, in making an equitable distribution of the distributable marital assets"). ¶ 40. Failing to remedy a property distribution secured by fraudulent representations as to a party's plans to apply for disability benefits allows a military retiree to use the illusive potential of retirement benefits to secure a windfall when
[¶ 8] Because Congress has prohibited a beneficiary from transferring or assigning Social Security benefits to another, see 42 U.S.C.S. § 407(a) (LexisNexis 2008), a court may not treat Social Security benefits as marital property subject to division or as a direct offset in dividing marital property. Depot v. Depot, 2006 ME 25, ¶¶ 10-11, 893 A.2d 995, 999-1000. We recognize that state or private pensions appear to be very similar to Social Security benefits when they are both in payout status.
" Id. (citing In re Marriage of James, 950 P.2d 624, 628 (Colo.App. 1997); Johnson v. Johnson, 726 So.2d 393, 396 (Fla.App. 1999); In re Marriage of Crook, 211 Ill.2d 437, 286 Ill.Dec. 141, 813 N.E.2d 198, 202 (2004); In re Marriage of Boyer, 538 N.W.2d 293, 295 (Iowa 1995); Olson v. Olson, 445 N.W.2d 1, 7 (N.D. 1989); Reymann v. Reymann, 919 S.W.2d 615, 617 (Tenn.App. 1995); In re Marriage of Zahm, 138 Wash.2d 213, 978 P.2d 498, 502 (1999); Berthiaume v. Berthiaume, 1991 WL 90839 (Minn.App. 1991) (unpublished)). See also Neville v. Neville, 99 Ohio St.3d 275, 791 N.E.2d 434, 436 (2003); Depot v. Depot, 893 A.2d 995, 1000 (Me. 2006); Wolff v. Wolff, 112 Nev. 1355, 929 P.2d 916, 921 (1996); In re Marriage of Swan, 301 Or. 167, 720 P.2d 747, 751 (1986). [¶ 22.
¶ 24. Several of these cases are particularly persuasive. In Depot v. Depot, 2006 ME 25, ¶ 17, 893 A.2d 995, Maine’s state supreme court noted that "all relevant factors" should be taken into account in order to assist a trial court in achieving its role in marital property division to "accomplish a just division." The Depot court explained: