Social Security Benefits and Divorce

Divorces are never easy but can be even harder financially on elder persons, particularly when one spouse worked but the other one stayed home, worked part time, or just earned significantly less than the “bread-winner” spouse. Luckily, the spouse who stayed home or who earned significantly less may be entitled to some of the benefits earned by the other spouse.

If you were married for ten years or more, your divorce does not terminate your entitlement to your ex-spouse’s Social Security Benefits. That means that if you are divorced, but your marriage lasted 10 years or longer, you can receive benefits based on your ex-spouse’s record (even if he or she has remarried) if:

  • You are unmarried;
  • You are age 62 or older;
  • Your ex-spouse is entitled to Social Security retirement or disability benefits and
  • The benefit you are entitled to receive based on your own work is less than the benefit you would receive based on your ex-spouse’s work.

If you remarried then that new marriage would then terminate your entitlement to any benefits based on your former spouse’s record, but it would attach to your new spouse. If your new marriage ends in divorce, annulment or death, the first entitlement might then re-attach. Your spouse’s remarriage does not affect your ability to collect part of his or her benefits.

In order to collect Social Security, you need to be at least 62 years old and your own Social Security Benefit must be less than what you would receive through your ex-spouse’s work record. If you meet these basic qualifications, you would receive up to one-half of your ex-spouse’s benefits. Your ex-spouse does not need to agree to this, he or she will not even receive any notice of this. You can also choose to delay collecting. The longer you wait, the higher the annual amount you can receive. After you reach the age of 70, there is no longer a rate increase for delaying benefits though. You should consider these factors in determining when to choose to start collecting Social Security Benefit through your former spouse. Do not forget, though, that the earlier you collect, the less you will receive and that there are limitations on earned income while receiving Social Security Benefits.

If your ex-spouse has not applied for retirement benefits, but can qualify for them, you can receive benefits based on his or her record if you have been divorced for at least two years.

At the time of your divorce, there are no special orders or papers required for you to later receive your share of your ex-spouse’s Social Security Benefits.

Your collecting your portion of your ex-spouse’s Social Security Benefits has no impact on the amount your ex-spouse will receive when he or she applies. In fact, it does not even have an impact on your ex-spouse’s new spouse collecting or your ex-spouse’s children receiving benefits should they be under 16 when your ex-spouse passes.

If your ex-spouse is deceased, as long as your marriage lasted ten years, you may receive Social Security Benefits based on your ex-spouse’s record. You should be able to receive his full benefits and may collect them when you are 60, or even 50 if you are disabled.

Even if your marriage did not last ten years, you may still be entitled to benefits if:

  • You still care for your ex-spouse’s child or children
  • The child or children have not reached the age of 16 years, or said child or children are disabled
  • The child or children are receiving benefits on the work record of your ex-spouse
  • Your benefit is a type of payment for caring for the child or children
  • Your benefits will terminate when the youngest child reach the age of 16

You have to apply for these benefits though as Social Security Benefits will not be awarded to you automatically. When you contact the Social Security Administration for any of these benefits, they calculate the benefits for which you are eligible, providing you with the highest amount possible. The choices of your benefits would be your own benefits as a worker, your benefits as a spouse, ex-spouse, widow or ex-widow. You will always receive the amount of the highest benefit for which you qualify— but not the benefits added together.

You can apply for benefits on-line by going to SSA.gov. You can apply on the phone by calling 800-772-1213 or you can find your local office by going to SSA.gov and making an appointment. To apply for benefits on your ex-husband’s work record, you will need to know his Social Security number. If you don’t’ know it, you can provide his date and place of birth and his parents’ names.

About teperlaw

I am an attorney practicing family law, immigration and wills and estate planning. You can find out more about me and my firm by visiting my website at: www.teperlaw.com 106 W. Franklin Ave. Pennington, NJ 08534 (609) 737-3030
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