Wednesday, August 25, 2010

Social Security Benefits After Divorce

As a practicing  divorce attorney in California I am often asked how does my divorce affect my Social Security benefits?

This blog is not intended to give the reader legal advice and you should always check with a representative of the Social Security Administration to confirm your eligibility and entitlement to benefits.   Social Security Benefits are authorized under federal law.  As such, they are not divisible as community property in a divorce proceeding in California.  However, if you are divorced  you may be potentially  eligible for benefits based upon  your ex-spouse's Social Security record ( family law attorneys refer to this  as a  "derivative" benefit.)

There are requirements to be eligible for this benefit.  You must have been married to your ex-spouse for at least 10 years and you may not be currently married  to claim the derivative benefit. You may also be able to claim a derivative benefit if you are a widow(er) and remarried after the age of 60.  Additionally, in order to qualify for benefits based on your former spouse's earnings record your former spouse's benefits must be greater than you are otherwise  due based upon your own earnings record.

Let's assume you and your ex-spouse were married for more than 10 years, you are now divorced, you have not remarried,  and your former spouse is still alive.  You think you might want to claim Social Security benefits based upon his/her earnings record.  You may be entitled to spouse's benefits based upon your former spouse's earnings record  if: (1) you are 62 or older; and (2) your former spouse is at least 62 and eligible for Social Security. It is important to remember that  your former spouse does not have to be receiving benefits, only eligible to receive them.    Always compare what you would be eligible to receive, based upon your own earnings record versus what you would receive as a derivative benefit BEFORE you apply for  benefits based upon your former spouse's earnings record.  (Hint:  If you are going through a divorce now, obtain a copy of your spouses Social Security Earnings Record Statement-this is mailed annually by the Social Security Administration approximately a month before the person's birthday). The derivative benefit in this example, depending upon your age, would make you eligible for an amount between one-third and one-half of your former spouse's retirement benefits, assuming that amount is more than you are due based on your own earnings record. 

There are a number of  free publications discussing Social Security Benefits.   For more information online go to www.socialsecurity.gov/pubs








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