When it comes to arranging a divorce, many couples look for the various ways in which they might be able to protect themselves from future financial issues. Part of this may involve looking closelyat concerns regarding asset distribution between partners, and split pensions. In the case of senior divorces, one particularly important concern is the issue of social security benefits, and how they can be distributed between both spouses. Importantly, it’s worth noting that social security is not something that can be argued and negotiated in family law through litigation, collaborative law, mediation, or any other dispute resolution method. Instead, social security is something that must be determined by the federal law of social security.  However, it is probably helpful to know what one’s financial situation will be, taking into account all resources, in the future.

As the social security administration posts on their website, in most circumstances, if you were married to your ex for a minimum period of ten years, and you decide to undergo divorce procedures, then you may be able to qualify for a social security benefit that is equal to (at most) 50% of your former spouse’s benefit amount. However, for this benefit to be received, you will need to be unmarried, aged 62 or over, and ensure that your ex-spouse is entitled to disability or social security retirement benefits. Crucially, to receive a portion of your ex-spouse’s social security payments, the benefit that you are entitled to will need to be lower than the benefit you would receive from your ex-spouse.

How Much You Could be Awarded in Social Security Benefits

Importantly, social security benefits are not something that can be discussed between your divorce attorneys during divorce agreements in the same way as maintenance or spousal support, equitable distribution and other financial solutions. These benefits are not awarded by the courts of New York, but by the federal social security agency. Though your ex-spouse will not have to file for social security benefits themselves in order for you to receive a benefit according to their record, they will need to be eligible for benefits. What’s more, in order for you to receive benefits on the record of your ex-spouse that has not applied for their own benefits, you will need to have been divorced for a minimum of two years. The amount that you can get as a divorced spouse will generally be equal to a maximum of half of what your spouse would receive at full-retirement age. The benefits awarded will not include delayed credits for retirement that may be received by your ex-spouse.

If you choose to request your benefit amount before you reach your full retirement age, then your benefit will be permanently reduced for each year that you claim early. As the age of full retirement has been gradually increasing, it’s worth finding out your full retirement age by visiting the SSA.gov website. If an ex-spouse collects social security benefits in accordance with your own work record, this should not reduce your benefits in any way, or the benefits your current family receives. Similarly, if you file for social security benefits based on the record of an ex-spouse, this will not reduce their benefits, or the benefits of any spouse they may now have.

Benefit Awards

The general rules regarding the distribution of social security benefits within the United States are applied according to the year in which you were born. Individuals born on or before the first of January 1954 who wait until their full retirement age to file for social security benefits will have the choice to file a restricted application that ensures that you only receive the ex-spousal benefit while your own amount continues to accumulate delayed credits for retirement. At that point, when you reach the age of seventy, you will have a chance to switch over to your full benefit amount. Due to new social security laws, this application option is not available for those born after January 2^nd 1954.
People who remarry after a divorce will not have the opportunity to collect benefits from their former spouse’s record in most cases until their next marriage ends (generally by annulment, divorce, or death). If your second marriage ends, then you may be able to claim social security benefits from the record of either spouse so long as the marriage in question lasted for a period of at least ten years.

Applying for Spousal Benefits

One interesting thing to keep in mind about spousal benefits in terms of social security is that you don’t need to know the earnings history of your ex-spouse, or even their whereabouts in order to apply. The Social Security Administration can generally track down the records of an ex-spouse as long as you are capable of presenting proof of your marriage – and showing that it lasted for at least ten years. In some cases, your ex may not even be notified by the SSA if you start claiming spousal benefits, because this will not have any impact on his or her own payments. What’s more, it is not a concern if your ex has remarried, as you can receive your payments regardless of your ex’s marital status.

To learn more about the various concerns that you may have to think about in senior divorce, or any divorce procedure, please contact me, Mr. Darren M. Shapiro to or discuss your needs or to receive your free half hour initial consultation. Couples considering mediation for their divorce procedure are also welcomed to schedule their free half-hour consultation appointment together. You can get in touch via our online form, or over the phone at 516-333-6555.