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Eric Maier
Eric Maier
Attorney

emaier@olalaw.com

AREA OF PRACTICE /
Marital & Family Law
Civil Litigation

EDUCATION /
B.A. Univ. of Michigan, 1992
J.D. Univ. of Texas Law School, 1995

  Article:

Social Security Retirement Benefits After Divorce

Introduction

One of the things that persons contemplating divorce sometimes overlook is how divorce will affect their rights to federal Social Security retirement benefits based on their soon-to-be former spouse's work record. This issue can be particularly important to a person who devoted his or her married life to staying home and raising a family so that his or her spouse could work outside the home. There are various rules and regulations concerning Social Security retirement benefits that must be considered in settling or litigating outstanding issues in a divorce. It is not possible to thoroughly explore the complex intersection of divorce and Social Security retirement benefits in one short article, so the goal of this article will be to identify some general principles in order to facilitate further thought and further discussion with a family law attorney.

No Property Right In Earning Spouse's Future Social Security Benefits

Often, a working spouse's interest in a private retirement account (such as an IRA or 401k) or pension plan will be considered "marital property," and, in a divorce, equitably divided to the extent of the contributions made to the private retirement account or plan during the marriage. Many people are surprised to learn that, in contrast, a working spouse's rights to Social Security retirement benefits are not equitably divided—even though these rights were accumulated during the course of the marriage. Thus, in equitably distributing marital assets during a divorce case, a court cannot award the non-working spouse a property interest in the working spouse's entitlement to future Social Security retirement benefits, and cannot award the non-working spouse a greater share of other marital assets to make up for the fact that the working spouse will retain the entire Social Security retirement benefit.

Consideration Of Social Security Retirement Benefits For Purposes Of Alimony

While other factors are considered, the primary factors the court will determine in awarding alimony is the present financial need of one party and the present ability to pay of the other party. Social Security retirement benefits that one spouse may receive in the future are not considered as part of the "present need" or the "present ability to pay" analysis. But if social security benefits comprise part of a spouse's monthly income at the time of the divorce (or at the time a party seeks to modify the final judgment due to a change in circumstances), that income can be considered for purposes of evaluating need and ability to pay.

Non-Earning (or Lower Earning) Spouse's Entitlement To Separate Social Security Benefits

As noted above, the non-working spouse (or lower-earning spouse) does not have a vested property interest in the working spouse's future entitlement to Social Security retirement benefits. However, the lower-earning spouse may be entitled to his or her own separate benefits as a divorced spouse. Many people who are getting divorced after years of staying home while his or her spouse worked outside the home are surprised to learn that they may be separately entitled to their own Social Security retirement benefits based on the work record of their soon-to-be former spouse. The amount of the benefit for the lower-earning divorced spouse will be 50% of the amount of the benefit for the higher-earning spouse. This is a separate entitlement to the divorced spouse, and it does not reduce the amount to which the working spouse is entitled.

Under federal law, a former spouse (who was the lower-earning spouse) is entitled to benefits as the divorced spouse of a person who is entitled to old-age or disability benefits if the former spouse independently applies for the benefits and if:

(a) The higher-earning spouse is already entitled to Social Security retirement benefits, OR, the higher-earning spouse is age 62 or older; and

(b) The lower-earning spouse was married to the higher-earning spouse for at least ten years immediately before the divorce became final; and

(c) The lower-earning spouse is not currently married; and

(d) The lower-earning spouse is age 62 or older; and

(e) The lower-earning spouse has been divorced from the higher-earning spouse for at least two years; and

(f) The lower-earning spouse is not entitled to benefits based on his or her own work record in an amount that is equal to or greater than the amount he or she would receive as a divorced spouse.

20 C.F.R. 404.331

Conclusion

Two of life's most unpleasant things to navigate are divorce and Social Security benefits. The intersection of the two can be particularly complicated. Persons contemplating divorce should be aware that their rights to Social Security benefits based on the work-record of their soon-to-be former spouse may be affected by divorce, and they should discuss the issue in greater detail with their family law attorney.








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