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If you’re an older adult who is considering divorce, you may be concerned about how it might affect things like social security benefits. These payments can be crucial to provide income to people throughout their retirement years. While retirement accounts like IRAs and 401(k)s are typically divided in accordance with California’s community property laws, social security benefits are treated very differently. There is no legal procedure for distributing Social Security benefits during the divorce process.
When it comes to Social Security benefits and divorce, it’s important to understand that you may be entitled to collect these benefits not only from your own record — but also from your former spouse’s employment record if you satisfy the criteria.
Social security benefits cannot be divided by a judge in a California divorce. Nevertheless, since they count as income and can have a significant impact on financial planning after divorce, they must be considered as part of a settlement agreement. When there is a considerable difference in the amount of income earned by each spouse, there can be a wide disparity in the social security benefits they may receive. Spouses might agree to offset such a gap in exchange for other property or assets.
A former spouse does not need to be advised that you are filing for benefits on their record. Since these benefits are not divided in the divorce process, there is no need to communicate with your former spouse regarding them. In addition, the Social Security Administration will not notify your former spouse that you have applied for benefits.
Importantly, Social Security benefits are not available in every case. Not only does a former spouse need to apply for these benefits with the Social Security Administration, but there are strict qualification criteria. You may be entitled to collect social security benefits from your former spouse’s record if:
The amount of Social Security benefits you’re eligible to receive under your own record must be less than that which you would receive based on your spouse’s record. If you qualify for Social Security retirement benefits on your own employment record, that amount must be distributed first. Then, you would receive any additional amount to which you are entitled under your spouse’s record to equal a higher amount of up to 50% of the benefits your former spouse is entitled.
You don’t need to wait until your former spouse begins collecting Social Security benefits to collect the benefits you would be eligible to receive based on their record. If they haven’t started collecting their benefits, the divorce must have been finalized two years or more before you file your claim.
Although the earliest you can apply for Social Security benefits is three months before you turn 62, it’s best to consider the timing of your application. If you file for benefits upon your 62nd birthday, the Social Security Administration considers this “early retirement age,” and your benefits would be reduced permanently. In order to obtain half of your former spouse’s benefits, you must apply at “full retirement age” — which is either 66 or 67, depending upon the year you were born.
You can continue to collect Social Security benefits based on your former spouse’s record if they remarry. But in the event you remarry, you would not be able to claim these benefits. Notably, there are certain exceptions to this rule. If your subsequent marriage was annulled or you divorced before you would have qualified to receive your new spouse’s benefits, you may still be able to claim the former spouse’s benefits.
If you satisfy the above criteria, and your former spouse passes away, you may be entitled to the same Social Security benefits as a surviving spouse. Survivor benefits are based on the deceased former spouse’s earnings. These benefits do not impact the amount that other survivors might receive. In addition, if you get remarried after you have reached the age of 60 (or 50 if you are disabled), your remarriage will not affect survivor benefit eligibility.
A former spouse who is caring for a child with a disability or who is under 16 does not have to meet the 10-year marriage requirement if the child is eligible for benefits under the former spouse’s record. However, the child must be the biological or adopted child of the former spouse.
If you’re considering divorce, it’s important to understand your legal and financial rights. An experienced divorce attorney can help you navigate the complexities of the legal process. Offering skillful counsel and dedicated advocacy, The Law Offices of Rick D. Banks has been helping clients throughout Fresno and the surrounding area with their divorce and family law matters for over 20 years. To schedule a no obligation consultation, call (559) 272-8363.