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Social Security Benefits
and 'Grey' Divorce

Divorce is on the rise among seniors. Seniors in reasonably good health can envision many more active years, and they want those years to be happy ones; thus, an increasing number will get a divorce rather than remain in an unhappy marriage.

An important issue in the "grey divorce" is the economic security of both spouses after the divorce. While divorces almost always involve financial issues, such as division of marital assets, divorced seniors often struggle financially as they typically do not have as many years of working and saving left as younger divorcing couples.

For women, the financial impact of divorce can be especially devastating as they are half as likely as men to receive their own pension income. While a wife may be awarded a share of her husband's pension benefits in a divorce, frequently there are no pension benefits or they are inadequate to provide financial security for both divorced spouses. More often than not, the only retirement benefit available to either spouse is Social Security.

As a part of Social Security's "basic level of protection," a woman may be eligible for Social Security benefits as a result of her husband's earnings and payments into the Social Security system. These "derivative benefits" are payable at wife's retirement age (62 or older), even if wife and husband are later divorced.

To be eligible for former spouse benefits, you must have been married to your former spouse at least 10 years "immediately before the date the divorce became final." The magic number is 10 years - plus one day.

The former spouse rule benefits the woman who has never worked or worked sporadically during the marriage but is not eligible for Social Security benefits in her own right. Even if a woman is eligible for benefits based on her own work, many women may get a higher benefit based on their ex-husband's work.

The benefits payable are equal to one-half the amount the husband is eligible to collect, based on his earnings over his entire career. As women have typically earned less than men, the increase in benefit amount may be significant.

If you are contemplating divorce, you should be aware of the requirements to receive Social Security benefits based on a former spouse's work. The rules apply to either former spouse. Thus, a divorced husband may receive benefits based on an ex-wife's Social Security earnings record.

If your former spouse is living, you can receive benefits based on the former spouse's work if:

  • Your marriage lasted 10 years or longer;
  • You are currently unmarried;
  • You are age 62 or older;
  • The benefit you are entitled to receive based on your own work is less than the benefit you would receive on your spouse's work; and
  • Your former spouse is entitled to receive Social Security retirement or disability benefits
  • .

Even if your former spouse has not applied for benefits, you may still be able to receive benefits based on the former spouse's earnings record, so long as the former spouse: (1) can qualify for benefits; (2) is age 62 or older, and (3) you have been divorced for at least two years. Generally, if divorced spouses remarry, they are no longer eligible for benefits from the previous former spouse. If the remarriage terminates, the divorced spouse once again becomes eligible for benefits from the previous former spouse.

If your former spouse is deceased, you can receive benefits if:

  • You are age 60 (or age 50 and disabled);
  • You are unmarried (or were remarried after age 60);
  • Your marriage lasted at least 10 years;
  • You are not entitled to a higher benefit on your own record.

If you are divorced and have never asked Social Security about qualifying for "former spouse" benefits, you should do so. You can contact your local Social Security Administration office or visit the Social Security website at www.ssa.gov for further information.

When applying for "former spouse" benefits, you will need: (1) proof of your age; (2) proof of marriage (usually the original marriage certificate or certified copy); (3) proof of the divorce (certified copy of the final decree); and (4) your former spouse's Social Security number or date and place of birth and parents' names.

If you are currently contemplating divorce, don't forget the 10-year rule. If you do not qualify for Social Security benefits or have earned less than your spouse, and are just short of that magic number, you may want to wait to file for divorce or delay finalizing the divorce until after the 10-year mark.

This article was written by Deborah Dallmann, Esq., a Legal Aid staff attorney in Legal Aid's Elyria office who handles family, benefits and education cases. It is reprinted with permission from The Alert, a publication of The Legal Aid Society of Cleveland.

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