New Jersey Supreme Court District VI (Hudson County) Fee Arbritation Committee service:2000-2004, 2005-2009, 2011-Present
Social Security Considerations In Divorce
For divorcing couples, if proper planning is not done, the result can be significant. Below find some basic rules, some comparisons between married and divorced couples, and a few helpful hints.
Let’s start with a few basic rules for a divorced spouse to receive spousal benefits on the former spouse’s earnings:
(1) The couple must have been married for a minimum of 10 years.
(2) Both spouses must be 62 years of age or older.
(3) The applicant seeking benefits must be unmarried at the time of the application.
(4) If the applicant is under the full retirement age (FRA) and is eligible for benefits on their own, then their own benefit must be less than 50 percent of their former spouse’s benefit at FRA.
(5) If the applicant’s age is greater than FRA, they are eligible to receive spousal benefits even if their own benefit is greater than 50 percent of their spouse’s benefit at FRA.
(6) If the applicant’s former spouse has not filed for benefits at the date of the divorce, then the applicant must wait a minimum of two years from the date of divorce before they are eligible to file.
(7) Divorced spousal benefits (DSB) are excluded from the “Family Maximum Calculation,” but surviving divorced spouse caregiver benefits are included.
(8) There are no available benefits for a divorced spouse with child-in-care.
However, there are benefits for surviving divorced spouse with child-in-care.
(9) If a divorced spouse continues to work while receiving either divorced spousal or survivor benefits, the “earnings test” rules apply and may result in a reduction or elimination of benefits if received prior to FRA.
(10) If a divorced spouse, who previously qualified for DSB, gets remarried, they will no longer be eligible for DSB unless the subsequent marriage also ends. If that occurs, the divorced spouse again becomes eligible for benefits off of the first ex-spouse.
There are a few significant differences in Social Security benefits between married and divorced couples that benefit divorced spouses. For example, for married couples, the worker whose earnings record is the basis for benefits must file for benefits before the spouse becomes eligible. In contrast, a divorced spouse whose ex-spouse has not filed becomes eligible two years after the divorce has been finalized. For married couples, either spouse may have their spousal benefits reduced or eliminated based on the “earnings test.” For divorced couples, this is not the case and reductions in ex-spousal benefits due to the earnings test do not apply. A third difference is that married couples cannot both file concurrently for spousal benefits on the other, whereas divorced spouses are eligible to do so. Lastly, the benefits being received by an exspouse do not affect the benefits that a new spouse can receive.
A divorced spouse also has eligibility for survivor benefits, assuming certain criteria are met. The marriage must have had a duration of at least 10 years; the applicant for divorced survivor benefits must be 60 years of age or older (50 if they are disabled); and the applicant did not remarry before age 60. It is important to note that the “deemed filing rule” does not apply for divorced survivor benefits. This means that a divorced survivor who files for divorced survivor benefits prior to FRA and whose own benefit is greater than 50 percent of that benefit, is not required to take their own benefit. The surviving divorced spouse will not be eligible to collect divorced survivor benefits upon remarriage unless they get remarried after age 60. In other words, if a person remarries after age 60 and the ex-spouse dies, that person will be eligible to collect ex-spousal survivor benefits. If you are contemplating remarriage, there are important factors which should be taken into consideration before finalizing a divorce.
Furthermore, if the divorced survivor is caring for the decedent’s child, including an adopted child, who is under age 16 or disabled, and who is entitled to receive benefits on the decedent’s record, then the above rules for age and length of marriage do not apply. For example, assume the duration of the marriage was only five years when they divorced. At the time, the wife was 30 years old and they had two children, ages three and one. The ex-husband died one year after their divorce. To simplify things, assume that his first wife had predeceased him.
Article by: Mia V. Stollen, Michael H. Karu And Ash Ahluwalia in 6-8-15 N.J.L.J.
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