Consider Social Security

• Author: Kate Vetrano and Lydia S. Terrill
• Pages: 21-24

SUMMER 2020 21

who has his or her own work history and is therefore eligible

for both types of benets will receive the higher benet.

Benets for a Divorced Spouse

In divorce, after a 10-year (or longer) marriage, benets may

be based on the contributions of a former spouse. is

amount is equal to one-half of the contributing spouse’s full

retirement amount, as long as the dependent spouse begins

receiving benets at full retirement age. ese derivative

benets are contingent on the former spouse’s eligibility for

benets even if not actually receiving benets, that is, being

at least age 62 and fully insured (having contributed to Social

Security for 40 quarters and thus qualifying for full benets).

is may be particularly important for a dependent spouse

who is older than the “contributing spouse.” On the other

hand, the dependent spouse qualies for derivative benets

by (1) being at least 62 years old and (2) remaining unmar-

ried. If the contributing former spouse qualies for benets

but has not yet applied for them, the dependent spouse must

wait two years after the divorce is nal to qualify for deriva-

tive benets based on the former spouse’s record. If the

dependent spouse is eligible for retirement benets based on

his or her own work record and derivative benets based on

the former spouse’s record, the retirement benet will be paid

rst. If the benet amount that the former spouse is entitled

Social Security is a system of social entitlement that

is neither welfare nor means-based. e Social

Security system provides benets not only during

retirement, but also for survivors and dependents

in case of death or disability. Although Social

Security benets are not marital property, they

constitute income and deserve consideration in a divorce case.

Benets are not only a potential source of child support,

spousal support, or alimony, but also may be additional

income that lessens alimony obligations. Social Security

benets are received in one of two ways: (1) they are paid upon

retirement, based on one’s contributions to the Social Security

system, or (2) they are paid to a spouse or child of a contribu-

tor, in which case benets are called “derivative benets.”

Benets for a Married Couple

For a married couple, the spouse of a contributor is eligible

for the spousal benet provided the marriage has lasted at

least one year, and provided that the contributing spouse has

already started receiving benets. A recipient spouse will

receive one-half of the contributor’s Social Security benet

amount as long as he or she has waited until his or her full

retirement age. A spouse may claim the spousal benet

before he or she has reached full retirement age (but not

before age 62), but the benet will be reduced. A recipient

Consider Social Security

By KATE VETRANO AND LYDIA S. TERRILL

Published in Family Advocate, Volume 43, Number 1, Summer 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.