An individual who is divorced must meet certain criteria in order to be permitted to collect benefits on his or her former spouse’s work record. The spouse that wants to collect Social Security must have been married for 10 years or longer. This does not mean 10 years from the date of marriage to the date of separation, this means 10 years from the date of marriage to the date of the dissolution. For example, in California, it takes a minimum of six months to get divorced. Therefore, if you file for a divorce 9 ½ years after the date of marriage, you do not have to be concerned with the 10 year rule. However, if you file for a divorce 9 years after the date of marriage and the divorce is entered as a judgment before 10 years from the date of marriage then you will not be eligible for Social Security benefits.
The individual requesting Social Security benefits must not be currently married, in most instances. If you are at least 60 years old when you remarry you will be eligible to receive Social Security benefits from your prior marriage.
You could apply to receive benefits based on your new spouse’s work record if those benefits would be higher. If you remarry before turning 60 you will not be eligible for benefits throughout your new marriage.
A divorced spouse may receive Social Security benefits based either upon his or her contributions or the contributions of the ex-spouse. You are entitled to one-half of the benefits of the ex-spouse, or your benefits, whichever is greater. The divorced spouse must have been divorced for at least 2 years before he or she can start collecting from the contributing ex-spouse unless the ex-spouse is at least 62 years of age and already receiving benefits. If the divorced spouse remarries he or she is no longer eligible for a percentage of the benefits from the previous ex-spouse. If the remarriage terminates the divorced spouse may once again be eligible for benefits from the previous ex-spouse.
If the contributing spouse is deceased the surviving ex-spouse can collect benefits at age 60 as long as he or she has not remarried.
It is helpful to be aware of the 10 year marriage rule if you are close to that number and seeking a divorce. Social Security benefits should be taken into consideration when making determinations as to spousal support in a dissolution settlement or judgment.
Wallace S. Fingerett, a Certified Family Law Specialist, is a partner at Feinberg Mindel Brandt & Klein in Los Angeles. He practices Family Law exclusively. He can be reached at 310-447-8675. View the FMBK Divorce Magazine profile.