Understanding Divorce & Social Security Benefits

If your marriage lasted 10 years or longer, and you are now divorced, you can receive Social Security benefits on your ex-spouse's contribution record so long as you are unmarried, you are 62 years of age or older, and your ex-spouse's benefits are greater than the benefits you are entitled to receive under your own work record. Your benefit will be equal to one-half of your ex-spouse's full retirement amount. .f your ex-spouse has not applied for retirement benefits, but can qualify for them, you can receive benefits on your ex-spouse's record if you have been divorced for at least two years.

The 2015 Bipartisan Budget Act brought new changes to our Social Security system that crack down on ways workers and families were receiving unintended benefits via policy loopholes. Namely, the common "file and suspend" and "restricted application" Social Security strategies have been stamped out, preventing couples from essentially providing one another benefits without diminishing their own delayed benefits.

With these changes comes a common question for couples: what happens to these shared Social Security benefits in the event of a divorce? The good news is that divorced couples can continue to share Social Security benefits as long as they are not collected with the "file and suspend" and "restricted application" methods. There are also other new changes for divorced couples provided in the 2015 Bipartisan Budget Act.

New Social Security changes for divorced couples include:

  • After two years of divorce, both spouses can claim spousal benefits simultaneously
  • Claiming a spousal benefit will not affect your ex-spouse's claim
  • An ex-spouse will not be notified of your spousal benefits claim
  • An ex-spouse's benefits at retirement age is used to calculate spousal benefits
  • The Social Security earnings cap will only apply to those receiving benefits before the retirement age

These changes are all to the advantage of the claimant filing for spousal benefits after a divorce—which is good news. There are, however, a few new disadvantages for divorced couples. For instance, Social Security administrators can conceal information about an ex-spouse's Social Security benefit. So, in some circumstances, it can be difficult to know what your benefits will be before filing. Speak with legal counsel before filing for spousal benefits to ensure that you avoid any pitfalls.

Child Benefits

There is one exception to the two-year wait time for Social Security spousal benefits for divorced spouses, and that is if the filer is responsible for the care of a child. In these cases, two different types of benefits may be available to the filer.

  • Children's Benefit: up to 50% of the eligible worker's benefit at full retirement age can be paid directly to each child's representative (the divorced spouse, usually) until the child reaches 18 years of age.
  • Child in Care Benefit: up to 50% of the eligible worker's benefit at full retirement age can be paid directly to the divorced spouse until the child is 16. This in a single benefit per household and is not affected by multiple children.

There are numerous factors that need to be considered when filing for these benefits. To learn more about your Social Security spousal benefit eligibility or your Social Security concerns about your upcoming divorce, contact a dedicated Long Island family law attorney today.

Samuelson Hause Samuelson Geffner & Kersch, LLP is a prominent, award-winning New York matrimonial law firm based in Garden City. Contact our dedicated team today for counsel you can trust during this uncertain time.

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