Page 60 - Family Law Services

Social Security

Under federal law, Social Security benefits are neither marital property nor divisible in divorce. Benefits
under the Social Security system are, however, a potential source of income to be considered for the
payment of child support, spousal support, or as additional income to a recipient that could lower the
need for alimony.

Individuals qualify for Social Security retirement benefits in one of two ways: (1) based upon contribu-
tions that result from one’s own work history or (2) as a result of being the spouse of someone who con-
tributed.

The recipient will receive the higher benefit computed under these 2 methods, provided the marriage
lasted for at least 10 years. The benefit, as a result of an ex-spouse’s contributions, is 50 percent of the
benefit the ex-spouse receives.

If a marriage is ending just short of the 10-year mark, delaying the final divorce decree until the mar-
riage is past its tenth anniversary should be considered.

The spouse who worked and contributed to Social Security must be eligible for benefits for the divorced
spouse to collect (that is, the contributing spouse must be 62 years old). This is important if the depend-
ent spouse is older than the contributing spouse. The dependent spouse must be at least 62 years old and
remain unmarried to qualify for benefits to be payable based on his or her ex-spouse’s contributions. It is
important to note that an ex-spouse drawing benefits based on an individual’s contributions has no im-
pact on that individual’s benefits.

If the ex-spouse remarries, he or she loses the benefits otherwise qualified for from his or her ex-spouse.
If the remarriage ends in divorce, the dependent spouse can resume the benefits from his or her first
spouse. If a second marriage lasts more than 10 years, the ex-spouse would receive the benefits from
whichever contributing spouse provides the higher benefit.

If the contributing spouse dies, the surviving divorced spouse can collect widow(er)’s benefits. To col-
lect, the surviving divorced spouse must be 60 years old and not remarried. If a divorced surviving
spouse is near age 60 and is considering remarriage, that spouse should wait until after reaching age 60,
in which case, the surviving spouse can continue to be entitled to the widow(er)’s benefit derived from
the deceased ex-spouse. Remarriage after age 60 does not prevent the divorced surviving spouse from
being entitled to benefits from the deceased ex-spouse.

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