Division of Social Security Benefits

Although generally Social Security benefits are not subject to the equitable distribution laws of the state of New York, they may be considered in determining maintenance awards, specifically, the amount of maintenance and the length of time.

You must have been married for at least 10 years prior to divorce, before you may be eligible for Social Security benefits based upon your spouse's contributions and paid directly to you from the Social Security Administration. Other considerations include:

  • Your former spouse must have reached the age of 62 and you won't collect until you have reached 62.
  • If your spouse dies prior to 62 or in retirement, it will affect the amount of the benefit you get, if you get a benefit.
  • You must be unmarried.

If your spouse is dead and you want to receive a lump sum payment, you must file within two years of death; if your spouse is alive, is at least 62, and you meet the other criteria, you will receive a benefit so long as you have been divorced at least two years.

Other things that you should need to keep mind include the following:

  • You are entitled to your own benefits based on your own contributions or the higher of one half of your ex-spouse's Social Security benefits.
  • Benefits die when you die — they do not pass to your heirs.

Pro Tip: Wait For At Least 10 Years Before Getting A Divorce

For example, if a couple is married for 10 years or longer, a wife is entitled to receive either her own or one-half of her husband's Social Security at retirement (the higher of the two). Her ex-husband's Social Security payments are unaffected. Ironically, the average length of marriage for people who get divorced is 9.6 years, and thus waiting just six more months would secure these benefits for the wife.

Dividing Social Security Benefits Requires An Experienced Hand

With more than 25 years of experience helping clients through the difficulties of divorce, I can help you understand your rights and obligations when it comes to the equitable distribution of marital property, including Social Security benefits. Schedule a free consultation with me by calling 718-720-1000 to talk through your concerns and goals.