NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Domestic Violence, Prenuptial Agreements, Child Custody

Many times clients ask me what happens with Social Security Benefits when a couple divorces. This is particularly relevant when one spouse (usually the wife) has spent a significant amount of time out of the workforce to raise children. Although many critics have doubts as to the long term viability of the Social Security System, at this time it serves as an important retirement benefit for many individuals. Moreover, this is often an issue which is taken into consideration when making a determination as to alimony.

The amount of benefit that a individual can collect is limited to one half of the former spouse’s benefit, unless the former spouse predeceases the individual in which case the entire benefit will be paid

An individual can collect only one benefit, so for situations when both spouses have been working, a calculation needs to made to determine which benefit will be greater. The Social Security Administration will calculate those benefits. Moreover, an individual does not have to wait for the former spouse to begin collecting benefits.  As long as the criteria are met, the former spouse can still be working.

An individual who is divorced must meet certain criteria in order to be permitted to collect benefits on his or her former spouse’s work record:

            * The individual must have been married for 10 years or longer.

            * The individual must not currently be married ( however, if there is a remarriage  and the second spouse is deceased, the individual may claim under either former spouse so long as each of the marriages lasted 10 years)

            * The individual must be 62 years or older (if the former spouse is deceased, the                            individual can begin collecting at age 60 and if the former spouse is  deceased, and the individual is disabled,  the individual can begin collecting at  age 50.

Oftentimes, there is a remarriage of the former spouse. In that case, and even if a second spouse is collecting benefits based upon the former spouse’s work history, there will be no reduction of benefits to the individual.

Finally, another important thing to remember is that in the event of a death of a former spouse (or a current spouse for that matter), any children under the age of 18, or 19 if they are a full time student are eligible for benefits as well.

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The Appellate Division issued an interesting unreported (non-precedential) opinion on November 20, 2008 in the case of Freda v. Freda wherein the Court found that it was error for the trial court to not equalize the parties' Social Security benefits.

In this case, both parties were in their 70s and had been married for more than 50 years.  Their means were limited and this was not an alimony case, as they are typically before the Courts.  The wife, however, requested that their Social Security benefits be equalized so that post divorce they both had the same amount of money (the wife's Social Security benefit was $797 and the husband's was $1,400).

Typically, after 10 years of marriage, at a legally appropriate age to collect, a spouse is able to collect based upon their earning record or their spouse's, whichever is higher.  It is my understanding generally that when you collect on a spouse's record, a recipient gets half of what the spouse's entitled would be (this does not reduce the spouse's entitled, however.)

The Appellate Division stated  "We find the trial court's decision unreasonable under the
circumstances of this case where, after fifty years of marriage, the parties should share equally in their joint income as well as their assets."  As a result, the husband was ordered to pay the wife $300 per month as alimony

To view the full case, click here.

The wife's request in this case was one that is seldom seen in these cases and I have heard arguments that such a claim could be preempted by Federal law.  That said, if the amount of/right to receive Social Security is based upon earnings during a marriage, then like a pension, or for that matter any other asset acquired during the marriage, why should it not be divided too?  Perhaps that the answer is that this is not an asset, but rather a right, but that said, the arguments are analogous.  This is definitely food for thought in cases involving long term marriages.

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