"After our divorce becomes final, am I entitled to any of my ex-spouse's Social Security, retirement, or disability benefits?"

California divorce law states that any asset acquired during the marriage by earnings of either party is a community asset, owned equally by each spouse. The period of accumulation of assets ends at the date of separation. This means that any retirement benefits earned after the date of separation are the separate property of the earner. Obviously, any retirement or other benefits earned AFTER separation and AFTER divorce do not belong to the ex-spouse.

However, if the ex-spouse is entitled to a portion of the retirement, from the period during the marriage, he or she can receive it later, via a court order. A Qualified Domestic Retirement Order (QDRO) is prepared and sent to the Pension Administrator. These funds were never taxed, so it is always a good idea to put them into another retirement account and not take them out until your retirement.

The ex-spouse is usually not entitled to a portion of disability benefits, although they may be considered income for purposes of setting support. The earner spouse's retirement benefits are also considered as income for purposes of setting support.

An ex-spouse has a derivative right to Social Security benefits, based on the ex-spouse's benefits, after a long-term marriage. The ex-spouse will get his or her share, and it does not come out of the spouse's amount.

To sum up:

• An ex-spouse can get Social Security benefits based on what the spouse earned;
• You can collect your community share of retirement benefits after the divorce;
• An ex-spouse is usually not entitled to a share of disability benefits, since they exist to aid the disabled spouse, but they are considered as income when setting support.

Georgine Brave is a San Diego divorce attorney dedicated to helping her clients through the family-law process with understanding and support. Brave, Weber & Mack offers family lawyers with knowledge, experience, and strong advocacy skills to support clients through any divorce issues.

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