The Basics of Social Security and Divorce

Social Security benefits are generally paid in two ways: (1) upon retirement based upon one's Social Security contributions or (2) to the spouse of a contributor, known as "derivative benefits." This comes into play during a divorce because if the marriage lasted 10 years or longer, benefits may be based upon the contributions of the former spouse.

Here are five rules to keep in mind:

1. If your marriage lasted at least 10 years and you do not remarry, you can collect retirement benefits on your former spouse's Social Security record if you are at least age 62, even if your former spouse is entitled to or receiving benefits. This is important in cases where the dependent spouse is older than the contributing spouse. It is also true even if the contributing spouse remarries.


2. You are entitled to receive 50% of your former spouse’s Social Security benefit or your own benefit based on your employment history, whichever is greater. And no, your former spouse's benefits are not reduced as a result. This is a common misconception and is key as it removes this Social Security benefit issue from the bargaining table during divorce negotiations.


3. If you marry more than once and each marriage ends (whether by death, divorce or annulment), you may collect derivative benefits from the former spouse that provides the highest benefit, provided the marriage lasted at least 10 years. Note that once you remarry, you generally may not collect from a former spouse unless your marriage ends.
   


4. In the event that your divorced spouse dies, you can receive 100% of his/her benefits as a widow/widower if the marriage lasted 10 years or more. To qualify, you must be at least 60 and have not remarried before the age of 60.


5. There are exceptions to these general rules where a former spouse is caring for a child of the primary beneficiary who is under 16 or the former spouse is disabled.

For more information, go to the Social Security Administration website or contact us at Hickey, Cianciolo, Fishman & Finn PC.