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Social Security benefits and divorce – the 10 year rule

By Brian Kaschel of Brian D. Kaschel Law Office posted in Divorce and Family Law on February 4th, 2012.

You are contemplating divorce. Let’s say you have been married 7, 8 or 9 years. Historically, your earnings are substantially lower than your spouse’s. Before you file for divorce, you should be aware of the “10 year rule” relating to Social Security retirement and disability benefits. You may be wise to wait to file that divorce.

The general rule is that if you are married for 10 years or longer, the divorced spouse with the lower earnings record can collect Social Security benefits based on the record of the higher earning spouse. Nice huh?

In addition to being married for 10 years, here are the other key points:

1. Your former spouse must be entitled to Social Security benefits;

2. You must be unmarried at the time you collect the benefits;

3. You must be 62 years of age or older; and

4. The benefit you would entitled to based on your own earnings record must be less than the benefit you would receive based on your former spouse’s earnings record.

And don’t worry – there’s no reason to argue about it. You opting in on your spouse’s record doesn’t reduce his or her benefits. In fact, consideration should be given to this benefit when negotiating the terms of your divorce; especially other retirement benefits.

But do watch out. If you remarry, you cannot collect on your former spouse’s record unless your subsequent marriage ends by death, annulment or divorce. See number 2 above. Therefore, it’s prudent to examine your financial circumstances carefully if you are considering getting remarried in your late 50’s.

The operative date for the 10 years is the date your divorce is finalized – not the date the divorce is filed.

Check out the link below for more detailed information on this topic:

Retirement Planner: If you are divorced


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