By Maren Cardillo Elbaum, Esq.
First, a short recap of exactly what Social Security is and how it works: Social Security is a federal program that provides monthly benefits to people who have contributed to the plan by paying Social Security taxes on their earnings during their income-earning years. The benefits provide monthly retirement income to those contributing employees who have reached aged 62 or who are disabled, as well as to spouses or ex-spouses, dependent children, and to the survivors of those contributing employees.
There are two primary ways in which you may receive Social Security benefits: (1) based on your own contributions to the Social Security system during your income-earning years, or (2) as a spouse of a person who is entitled to Social Security benefits (claiming in this manner is referred to as receiving “derivative benefits”). You would elect to receive whichever of these two options would provide you with the higher benefits.
Normally, if you elect to receive derivative benefits, you will be entitled to 50% of your spouse’s benefits when he or she retires (this is called the “spousal benefit”). Upon the death of your spouse, you may be entitled to 100% of his/her benefits (this is called the “survivor’s benefit”). It is important to be aware that the dollar amount that you will receive each year is affected by the age at which you elect to begin receiving the benefits. For example, if you elect to start receiving benefits at age 62, you will receive less each year than if you wait until your Full Retirement Age, which may be at age 67 or higher, depending on the year in which you were born.
So, how does divorce affect these benefits?
After your divorce, you can still choose to receive benefits based on the contributions of your former husband or wife. In order to receive these benefits, the following conditions must be met:
1) Your ex-spouse must be entitled to receive Social Security benefits (If your ex-spouse has worked for 10 or more years, he/she will become eligible to receive benefits once he/she reaches age 62. Note: if your ex-spouse is receiving Social Security disability benefits, you may also qualify for those benefits).
2) Your marriage lasted at least 10 years before your divorce was decreed.
3) You are age 62 or older.
4) You are not married.
5) Your own Social Security retirement benefits are lower than the benefits you would receive on your ex-spouse’s work record).
It is worth noting that the benefits you receive on your ex-spouse’s work record have no effect on the amount of benefits that your ex-spouse will receive. They will not be reduced in any way. Nor does it matter whether or not you ex-spouse remarries. The benefits that you are entitled to based on your ex-spouse’s work record exist independently.
However, if you remarry, you cannot collect benefits on a former spouse’s record unless your later marriage ends. At that time, you once again become eligible to receive benefits based on the contributions of a previous, eligible spouse, so long as the five conditions listed above are all met. If you have been married more than once, and each marriage lasted for at least 10 years, then your derivative benefits will come from the former spouse whose work record would provide the highest benefits.
How does my divorce affect survivor’s benefits?
After your divorce, you may still be entitled to receive social security benefits based on the contributions of your former spouse, even if your former spouse predeceased you (this is commonly referred to as “widow(er)’s benefits”). You and your former spouse must have been married for at least ten years before final divorce decree.
The surviving divorced spouse need only be age 60 (or, if disabled, at least 50), provided there is no remarriage before he or she reaches 60 years of age. At that time, the surviving divorced widow or widower may be eligible to receive up to 100% of the deceased former spouse’s benefits, as compared to the 50% he or she would have received were the former spouse still living.
For a more in depth explanation of social security benefits, you can refer to the official website of the Social Security Administration: http://www.ssa.gov/
Maren Cardillo Elbaum, JD, has been practicing for nearly a decade, exclusively as an attorney-mediator at Divorce Mediation Professionals. She received training in divorce mediation at the Ackerman Institute for the Family in New York City. Maren dedicates her entire practice to helping couples find constructive resolutions for all of the issues pertaining to their separation and divorce and provides all related legal services.