Social Security Benefits After Divorce

As a divorced spouse, you may be eligible to receive Social Security benefits based on your own or your former spouse's contributions to the system. The Social Security system allows for benefits for divorced spouses who meet certain conditions. The following information summarizes the conditions for Social Security retirement benefits, death benefits (aka survivor's benefits) and Medicare, and briefly describes the more common benefits available to the children of divorced spouses.

Is Social Security considered an asset?

While retirement benefits such as 401(k) accounts, IRAs, or pensions are divisible assets upon a divorce, Social Security benefits are not. This does not mean, however, that you are not entitled to receive such benefits when you and your spouse divorce. It simply means that the potential value of those benefits cannot be considered for purposes of equitable property division. (On the other hand, such benefits are usually considered in awarding maintenance and in determining child support).

Am I eligible for Social Security benefits under my former spouse's work record?

If you were married to your spouse for over ten years, you are eligible to receive one-half of your former spouse's Social Security retirement benefits provided you meet certain conditions.

• You must be unmarried and age 62 or older.
• Any benefit you are entitled to receive through your own work must be less than that you would receive through your former spouse.
• Your former spouse must be entitled to benefits, whether actually receiving benefits or not.

If your former spouse is not yet receiving benefits but qualifies and is age 62 or older, you must have been divorced for at least two years to collect benefits. Receipt of these benefits does not reduce the amount of benefits the former spouse or the former spouse's subsequent spouses are entitled to receive. You also may apply for benefits prior to full retirement age, at age 62 for example, and receive a reduced percentage of your former spouse's full benefits.

Exceptions

Many exceptions exist to the above general rules that affect your eligibility to collect benefits and the amount of those benefits. For example:

• If you are not eligible for benefits through your former spouse's work because you have remarried, you may subsequently become eligible based on death of or divorce from your current spouse.
• If you are eligible for benefits under more than one former spouse's work record, you may be able to elect to receive the higher benefit amount.
• If your former spouse is not full retirement age and you apply to receive benefits through your former spouse's work history, your monthly benefit is calculated based on your former spouse's eligibility at the time of application,.
• If you are eligible for benefits under both your own work record and a former spouse's work record, you may be eligible to receive only your former spouse's benefit and delay receiving your own until a later date, possibly resulting in your own benefit amount being higher.

Because the Social Security rules are complex, it is best to consult with your attorney who can advise you and direct you to other qualified professionals to understand how to maximize your benefits.

Death / Survivor's Benefits

Under certain circumstances, you may be entitled to death/survivor's benefits through a former spouse's work record. If you are unmarried and aged 60 (or aged 50 if disabled), married to your former spouse for over ten years, and not entitled for a higher Social Security benefit on your own record, you are eligible for survivor's benefits upon the death of your former spouse. Death benefits are paid at a higher amount than retirement benefits. If, as a surviving spouse, you are full retirement age or older, you are entitled to 100% of your former spouse's basic Social Security benefit.

You may also be able to avoid the 10-year marriage rule if you care for the child of the deceased worker. In addition, if the child of the deceased worker is eligible for survivors' benefits by being either disabled or under the age of 16, then, as the divorced surviving spouse caring for the child, you can collect up to 75% of the deceased former spouse's full benefit. The foregoing benefit would be in addition to death benefits paid to the care provider on behalf of the deceased worker's child.

Medicare

You may qualify for Medicare under your former spouse's work record if you are eligible for Social Security benefits under the same. Generally, you must be age 65 to qualify, but disabled divorced widows or widowers under age 65 and disabled children may be eligible for Medicare after a certain qualifying period.

Medicare has three major health insurance programs, Parts A, B, and C, and a prescription drug coverage program, Part D.

• Medicare Part A is hospital insurance and your eligibility is based on your former spouse's work record.
• Medicare Part B is a medical insurance program available for a monthly premium and available to most persons over the age of 65 who are eligible for Medicare Part A.
• Medicare Part C is optional coverage. If you are eligible for both Medicare Parts A and B, you can choose to receive your health benefits through an approved provider organization, like an HMO, under a plan called Medicare Part C. In some instances additional premiums are required.
• Medicare Part D is a prescription drug coverage program that is voluntary and costs an additional monthly premium.

Applying for Benefits

To apply for social security benefits contact the social security administration on the internet or at your local office. Information needed to process your application may include:

• A birth certificate or other proof of birth;
• Proof of US citizenship or lawful alien status;
• Military discharge papers if you served in the military prior to 1968;
• W-2 forms and/or self-employment tax returns for the past year;
• A final divorce decree or judgment, if applying as a divorced spouse, and;
• Marriage certificate.

If divorced more than once, you should have all divorce judgments or decrees to determine your eligibility under all former spouses' records.

The rules governing Social Security are complex. If you are in the process of getting divorced or are considering your financial options post-divorce, your attorney can refer you to an appropriate financial planner or legal professional with elder law or public benefits expertise. You may also review information on the Social Security Administration's website at www.ssa.gov.

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