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Divorce and Social Security Benefits
This article is a brief overview of the Social Security system and the benefits available to a divorced spouse. For ease of writing, references will be made to the dependent spouse as being the wife. The law applies equally to the husband.
The Social Security Act was enacted in 1935 and provides benefits to insured workers and their children, spouses, and former spouses.
A divorced spouse can receive Social Security benefits either on her own contributions to the Social Security system or as a spouse of a contributor. The benefits as a spouse of a contributor (primary beneficiary) are called derivative benefits.
If a woman is married for ten years or more, she can collect derivative benefits after a divorce. The spouse from whom benefits are derived must be at least 62 years of age but does not have to be actually receiving benefits. The dependent spouse must be at least 62 years of age and unmarried. The sum paid to the dependent spouse is a percentage of the benefit due the primary beneficiary. If the primary beneficiary has not applied for benefits but can qualify and is age 62 or older, the spouse must have been divorced for at least two years. If the ex-husband was actually receiving benefits before the divorce, there is no two-year waiting period.
If the dependent spouse remarries, she will not be eligible for benefits. It the remarriage terminates, the dependant spouse becomes eligible again for derivative benefits from the former spouse.
If the spouse is deceased, the surviving divorced spouse can collect benefits at age 60 and at age 50 if the dependent beneficiary is disabled. The insured worker must have been fully insured and the surviving divorced spouse has not remarried before the age of 60. The surviving divorced spouse must been married to the insured worker for at least ten years. The benefit is 100% of the deceased worker's benefit. There is no limitation on the number of divorced surviving spouses who can receive benefits on the deceased worker's earnings record.
A former spouse, however, does not have to meet the length-of-marriage rule if she or he is caring for a child of the primary beneficiary who is under 16.
Marital property is all property earned or acquired during the marriage. Separate property is that owned by one party before the marriage. In New York, separate property is awarded to that individual. However, the increase in value of separate property that occurs during the marital period may be divided under the equitable distribution system. Separate property also includes gifts or inheritances received during the marriage.
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