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The Role of Social Security Benefits in Divorce

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Although Social Security benefits are not marital property, because such benefits constitute income, they deserve careful consideration when a couple divorces. These benefits are a potential source of child support, alimony or as additional income that can decrease an alimony obligation.

Social Security is a system of social entitlement; it is neither welfare nor based on any sort of means test. The Social Security system provides benefits not only during retirement, but also for survivors and dependents in case of death or disability.

One receives Social Security benefits in one of two ways:

  1. based on one's contributions to the Social Security system or
  2. as a spouse of such a contributor—called derivative Social Security benefits.

The recipient will receive benefits in which ever manner provides the higher benefits.

Social Security Benefits for a Divorced Spouse

After divorce, one can still receive benefits based on the contributions of a (former) spouse if the marriage of the parties was at least ten (10) years in duration. Therefore, if the parties are considering dissolving a marriage that is close to being ten (10) years in duration, serious thought should be given to postponing any final hearing until the tenth anniversary of the marriage has past. This would preserve the Social Security derivative benefits available. In addition, the spouse from whom benefits are to be derived must be eligible for benefits under the rules and regulations of the Social Security Administration—that is, at least 62 years of age and fully insured—even if not actually receiving benefits. This may be particularly important if the dependent spouse is older than the contributing spouse.

The qualifications for being a dependent spouse are 1) being at least 62 years of age and 2) remaining unmarried. One cannot obtain Social Security derivative benefits from a former spouse if the dependent spouse has remarried. The exception to this rule is that if the dependent spouse remarried and that second marriage has terminated, then that dependent spouse would regain the eligibility to derive benefits from the first contributing spouse.

The issue of what constitutes a marriage or a remarriage is based on the law of the state in which the parties live. Here in Connecticut the “common law” marriage has no basis; the spouses must have been married in an appropriate ceremony.

Social Security Benefits for a Surviving Divorced Spouse

Social Security derivative benefits may be available even if the former spouse predeceased the applicant so called widow(er)'s benefits. Again, the couple must have been married for at least ten (10) years before the final divorce decree and the contributing spouse must have been fully insured at death. The surviving divorced spouse need only be age 60 (or, if disabled, at least 50), provided there is no remarriage before the age of 60. This point is critical and should be carefully considered by any divorced individual approaching 60 years of age who is contemplating remarriage. The surviving widowed spouse receives 100% of the benefits instead of 50% if the former spouse is still alive. Remarriage does not prevent eligibility for disabled surviving spouses or disabled surviving spouses who marry between the ages of 50-59.

Social Security Benefits to Children

Social Security benefits are paid to the children when at least one of the parents becomes disabled, retires or dies. Many times in separated or divorced families, the issue is whether the support obligor gets credit for the benefits the obligor is paying his dependent.

In Connecticut, the income paid to the dependent child by Social Security is counted as income to the disabled parent for the purposes of calculating support, but the full amount paid to the child is credited against that support amount. If the benefit exceeds the child support obligation as calculated under the Connecticut Guidelines, there is no refund to the disabled parent. The child, who must be under the age of 18, or, if still in high school, under the age of 19 (unless the child is disabled) can be the contributing spouse's biological child, adopted child, stepchild, or even a dependent grandchild. In order for a child to be eligible for these benefits, the child must:

  1. have a parent who is disabled or retired and entitled to Social Security benefits OR
  2. have a parent who died after having worked long enough to be entitled to Social Security benefits.

Within a family, a child may receive up to one-half of the contributor's retirement benefits or disability benefits, or 75% of the deceased parent's basic Social Security benefit (up to the family maximum). If a stepchild is receiving benefits and the contributing spouse becomes divorced from the child's parent (in July 1996 or later), the stepchild's benefits will end the month after the divorce becomes final.

Social Security benefits can play an important role in divorce as well as in many other family matters. This article is just a most brief summary of the Social Security laws and regulations. More information can be obtained at the Social Security Administration's website. Consulting with an attorney is always advised in dealing with complex matters such as Social Security benefits. Much thanks to Attorney Kate Vetrano of King of Prussia, PA for allowing me to use large parts of her article on this subject.

The information in this article should not be construed as legal advice. It is for general informational purposes only. No attorney client relationship is created by this article. If you have specific questions about social security disability and divorce or any other legal matters, you should schedule a free and confidential consultation with our office by calling (203) 238-1010 or filling out our online contact form.