Social Security Benefits & Divorce

When a person retires and begins drawing social security, their spouse is entitled to social security benefits based on a proportion of the benefits received by the retiring person. A consideration in any divorce is whether or not the spouse will still be entitled to those benefits after the marriage is dissolved. And the short answer to that question is: maybe. As a preliminary matter, remember that social security is a federal program, so the rules should be substantially the same whether parties are divorcing in New Mexico or elsewhere.

The initial threshold for whether or not a divorced spouse may receive social security benefits based in their former spouse‘s benefits is the length of the marriage. The parties must have been married for at least ten (10) years in order for the divorced spouse to be entitled to benefits based on the former spouse‘s social security record. If the ten (10) year requirement is met, then the divorced spouse may receive the benefit only if they are at least sixty two (62) years old and have not remarried.

Additionally, the divorced spouse is only entitled to benefits based on the former spouse‘s social security if the divorced spouse is not entitled to a higher social security benefit based on his or her own work history. Further, the former spouse must be eligible to receive the social security benefits before the divorced spouse can begin receiving a spousal benefit. For example, if the parties were married for twelve (12) years and divorced when they were in their fifties, then the divorcing spouse would have to wait until she or she was sixty two (62), and the former spouse was old enough to draw their benefits, before the divorced spouse could receive their benefit.

There are, of course, exceptions to this general rule. A divorced spouse may still be entitled to their benefits based on the former spouse‘s benefits even if the divorced spouse remarries in situations when the second spouse dies or the second marriage ends by divorce or annulment. Also, if the divorcing spouse‘s second marriage is to someone already receiving certain types of social security benefits or survivor‘s benefits, then the divorced spouse may still be entitled to benefits based on the former spouse‘s benefit despite the fact that the divorced spouse remarried.

No matter what age parties are when they divorce; the financial fallout from a divorce can be serious and take months or even years to recover from. Considering the long-term financial impact of divorce is essential and should address retirement plans, including social security. An experienced family law attorney can help parties ensure that they are protecting their financial future after a divorce as much as possible.

Collins & Collins, P.C.
Albuquerque Attorneys


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