By: Carole L. Chiamp
There
are enough rules about social security to drive one crazy trying to
figure them out. But there is some simple information below that can be
very helpful. Unfortunately one of the biggest assets, the stream of
income from social security is often ignored in divorce.
Ten Year Marriage Rule
If
you and your former spouse were married for ten years or more and your
former spouse paid into the social security trust fund, you may be
entitled to a portion of retirement benefits and/or survivor benefits on
your former spouse’s account if you have not remarried. Eligibility is
not dependent on recognition of these rights in the judgment dissolving
your marriage. The federal government provides these benefits; the
state divorce judgment need not specifically address them. At ten years
of marriage certain rights enure to the benefit of the non-working
spouse. However, if you decide to get divorced at nine and a half years
of marriage, it would be helpful to not enter the judgment of divorce
until one day after your tenth anniversary. It costs neither spouse
anything to wait as the wage earning spouse is not penalized by any
reduction in benefits, even if the spouse is married for ten years more
than one time.
Survivor Benefits
Former
spouses may be eligible for survivor benefits. If your former spouse
dies, and you meet the ten year marriage requirement, you will be
eligible for reduced survivor benefits at the age of sixty and full
survivor benefits at the age of sixty-five. As with spouse’s benefits,
your receipt of social security survivor benefits does not affect the
amount of benefits paid to anyone else on your former spouse’s social
security account.
If you remarry before turning sixty
years old, you will lose your rights to retirement and survivor benefits
on your former spouse’s account. You are still eligible for both
spouse’s and survivor benefits on your former spouse’s account if you
remarry after age sixty. You also may become “re-eligible” for benefits
on your former spouse’s account if you remarry before sixty but that
marriage also ends.
You cannot receive both spouse’s
benefits and survivor benefits from your current spouse. If you are
receiving spousal benefits at the time your former spouse dies, your
benefits automatically convert to survivor benefits by the social
security system.
Divorces and Spousal Support Benefits in Marriages of Long Duration
When
spouses have been married a long time and a divorce settlement is being
negotiated consider how social security will affect each spouse. Think
of the situation where the working spouse receives, or will receive, say
$1,000 monthly benefit from social security retirement while the other
spouse receives or will receive $500. (The benefits are such that the
non-working spouse receives one-half of the amount which the retired
worker receives). The court has the authority to make a fair division.
In doing so, the non-working spouse may successfully argue that one
spouse should not receive one-half the amount since both contributed
equally to the marriage, one by being out of the work force to raise the
children while the other earns social security credits. That argument
is most often the argument needed for the wife who has been out of the
work force and will never be able to earn as much during her shorter
outside the home work life as the husband. Other arguments may be made
to offset some of the harm by awarding her more of the other assets of
the couple.
Contact Information
Social
security laws are constantly changing and may affect your future
benefits. To be sure of your exact benefits and earlier eligibility to
receive them, contact the social security administration directly. The
Department of Health and Human Services issues numerous free pamphlets
explaining exactly what your benefits are and how recent legislation
affects them. Two booklets that may be helpful to you are Understanding
Social Security (January 1991) and Survivors (January 1991). For free
copies of either or both pamphlets, contact the Department of Health and
Human Services directly at 800-722-1213.
Tuesday, August 7, 2018
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