One of the questions often asked by divorced individuals, particularly at the time of their retirement or the retirement of their former spouse, is whether or not they are entitled to receive Social Security benefits based on their prior marriage. The Social Security Administration interprets the law with the philosophy that a divorced person may deserve a personal benefit themselves if they were a long-term spouse of a member of the country’s workforce.

Generally, there are two sets of rules which the Social Security Administration applies to determine whether or not an individual will qualify. The first applies if your former spouse is living; the second applies if they are deceased.

The interpretation of these rules can sometimes be complicated and is often necessary to have an experienced family law attorney review not only the rules applied by Social Security but the settlement agreement signed at the time of the divorce. In the first scenario, where the former spouse is still living, the preliminary criteria which need to be met are: (1) your prior marriage lasted for 10 years or more; (2) you are not currently married; and (3) you are 62 years of age or older.

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Just as important is whether you are entitled to receive Social Security benefits based on your own prior work history. If you are, the amount which you are entitled to receive for your efforts must be less than what you are entitled to receive based on your prior marriage. No individual is entitled to collect both benefits.

A second set of rules apply if an individual’s former spouse has already died. Under these circumstances, you would have to be 60 years of age or older, have to have been married to your former spouse for more than 10 years, and cannot be entitled to a retirement benefit which would be higher than what could be claimed based upon your former spouses work record.

Finally if you have remarried before the age of 60, you may not be able to receive this benefit. If you remarry after the age of 60, you would probably be entitled to receive it. It is also important to note that ex-wives and ex-husbands are treated the same under the Social Security statutes, that it does not matter if your former spouse is now remarried and that any benefit you are entitled to receive as the divorced spouse will have no effect on the amount of the benefit your former spouse is entitled to receive based upon his or her work history.

Lastly, bear in mind that if you should elect to receive your benefits before your full Social Security retirement age (which you can determine at www.ssa.gov) you will permanently reduce the amount you are entitled to receive. There are other rules that may apply to divorced individuals. If you subsequently remarry, you generally are prohibited from receiving benefits based on your former spouse's work history unless your later marriage ends (whether by death, divorce or annulment). If your former spouse has not applied for retirement benefits, but has met the qualifications to receive them, you can receive benefits on his or her record if you have been divorced for at least two years. Differing rules apply for those who have been married multiple times.

There are other qualifying factors and determinations which need to be considered to confirm what benefit a former spouse is eligible to receive. It is always best to contact an experienced family law attorney who can discuss your qualifications to receive such benefits. Lindabury, McCormick, Estabrook & Cooper provides legal representation to people in communities across Union, Somerset, Monmouth, Middlesex, Morris, and Bergen Counties, among other areas. Call today to schedule a consultation with James McGlew at 908-233-6800.