How Is Social Security Handled in a Divorce in NY?

When a couple divorces in New York, the division of property, assets, debts, and retirement benefits are often front and center. Additionally, many people are surprised to learn that Social Security retirement benefits may also play a role in a divorce.

For those who are nearing retirement age and considering divorce, or a divorce is already in process, it's very important to understand how Social Security is handled in New York.

Understanding Social Security in Divorce

Unlike other marital assets, Social Security payments are a federal benefit that is governed by federal law, not New York. This means that New York courts don't have the authority to divide Social Security between spouses. However, there are some cases where a spouse may be entitled to Social Security claim benefits based on the earnings record of their ex-spouse.

This can significantly affect retirement planning following a divorce, especially for those who haven't been in the work force for many years, or for those who have earned a lot less than their spouse.

Key Eligibility Criteria for Ex-Spousal Benefits

For a spouse seeking benefits based on their ex spouse's work record, there is certain criteria which must be met.

• The marriage lasted a minimum of 10 years

• The spouse seeking benefits is at least full retirement age, 62 years old

• The person is currently not married (no new spouse)

• The ex-spouse is eligible for their own benefits

• The benefits paid are less than the benefits based on the ex-spouse's work history

If all of these conditions are met, it allows the person to claim up to 50% of their ex-spouse's full retirement amount without it affecting the ex's benefits.

What Happens If the Ex Spouse Remarries?

If the ex-spouse remarries, the ability to collect benefits doesn't change, and the individual still might be entitled to receive benefits. However, if the individual who is collecting benefits gets remarried, the benefits will stop...unless the second marriage ends through divorce, annulment, or death.

This can make the decision to remarry a difficult one, especially for those who are relying on the former spouse's monthly benefit.

How This Affects High-Earning Spouses

If Spouse A makes more money than their ex, Spouse B, then Spouse B may be eligible to receive Social Security benefits based on Spouse A's work record. Spouse A does not have their benefits reduced, nor can they decline allowing this to happen.

Divorce and Survivor Benefits

In addition to retirement, Social Security also provides survivor benefits. A surviving divorced spouse might be eligible to get widow or widower benefits based on their deceased spouse's record.

To quality for divorced survivor benefits, certain conditions apply:

• The marriage lasted for a minimum of 10 years.

• The surviving divorced spouse must be 60 years old (50 years old if disabled)

• The surviving divorced spouse is unmarried, or remarried after age 60

The amount could be 100% of the ex-spouse's benefits if they have passed away.

Can Social Security Be Negotiated in a Divorce Settlement?

Social Security benefits cannot be negotiated in a divorce settlement. It is administered by the Social Security Administration, and not the state.

That being said, however, Social Security benefits may indirectly influence spousal support. For instance, a spouse who is earning less and expects to have fewer Social Security benefits may want longer or higher alimony payments.

An experienced divorce attorney can factor these implications into a comprehensive settlement strategy. For more information, these divorce lawyers in Albany may be able to help.

Coordination with Other Retirement Benefits

While Social Security is not divided in divorce, other retirement assets are, including:

• Pensions

• 401(k)s

• IRAs

• Military and federal retirement benefits

These are generally split by the court using New York's equitable distribution laws. Having an ex-spouse's Social Security benefits can boost other retirement funds and retirement accounts.

Planning for Retirement After Divorce

Retirement planning is always confusing, and it can be more confusing and complex during a divorce. Those who are about to reach retirement age, divorcing, and who have relied on the earnings of a spouse might need this crucial income stream. This is especially the case if their own work history is lacking or they don't have enough credits through the Social Security system to receive benefits based on their work history.

This is why it's important for any soon-to-be divorced person to work with an attorney and/or financial advisor to come up with a retirement plan. They can also consult question such as how is a mortgage handled in a divorce in NY?

Common Misconceptions About Social Security in Divorce

Here are some common misconceptions current spouses may have as they begin to navigate a divorce:

If I claim on my ex spouse's record, they will get less.

This is not true. If one spouse claims benefits based on the former spouse's benefits, the former spouse does not get fewer benefits.

I can't make a claim on anything if we got divorced several years ago.

As long as a person meets the criteria for eligibility, the time that has passed since the divorce does not affect the ability to claim benefits.

I must wait for my ex to retire.

No. As long as an ex-spouse is eligible for retirement, and the couple has been divorced for at least two years, the individual has the ability to get those benefits.

Work with a Divorce Attorney Familiar with Social Security Issues

While Social Security is managed at the federal level, it still plays a significant role in divorce planning under New York law.

Though it is not considered marital property, as it's not administered by the state, divorced couples concerned about retirement income or planning for retirement should know how this works. Our team can also answer questions like how is life insurance handled in a divorce in NY?

A skilled divorce lawyer in New York can help clients:

• Understand eligibility for ex-spouse benefits

• Plan around income from Social Security when negotiating spousal support

• Incorporate Social Security considerations into broader retirement strategies

• Protect financial rights in the divorce process

In New York divorces, Social Security isn’t split like a 401(k)—but that doesn’t mean it should be overlooked. As long as a couple was married at least 10 years, the person is approaching retirement age, or were a lower earner in the relationship, the ex’s Social Security record may offer a critical financial lifeline.

By working with an attorney from Divorce & Family Legal, LLC who understands both state and federal law, it's possible to get the help necessary to have a brighter future.