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Bleeding hearts and bootstraps

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POSTED February 10, 2012 8:51 p.m.

Q: I was surprised by the woman who wrote to you and said that people living on a small amount of Social Security were just lazy. Let me share my story to help this callous woman understand why people like me don't get very much from Social Security.

Believe me, I am not lazy. I worked for quite a few years before I married my husband. Shortly after we were married, I withdrew all of my retirement savings to help him start a business, which eventually became very successful. I quit my job and worked for his business but never got compensated.

Just before our 10th anniversary, he divorced me to marry someone much younger and prettier. I was left with nothing. I've worked at a variety of jobs since then. Some were covered by Social Security. Some were not.

I'm now 62 and can't get benefits from my non-Social Security jobs. I'm left with a small Social Security check of my own. I was married to my ex for nine years and 11 months. I know I must have been married 10 years to claim benefits from my ex-husband. But we lived together for several years before our marriage, and we were living in a common-law state.

I talked to someone at my local Social Security office about possibly claiming divorced wife's benefits from my ex, but she told me I'm not eligible. Do you think I can claim benefits? And if so, would I need a lawyer to do this?

A: Yes, I think you are eligible for divorced wife's benefits. But before I help you with that, I've got to comment on your story.

A couple of months ago, I wrote a column about a woman, who, like you, was living on a small amount of Social Security, primarily because of some bad experiences in her life. Her story brought out the bleeding-heart liberal in me, and I suggested different ways she might be able to get some extra benefits from Social Security.

Well, that triggered a backlash of emails from readers whose hearts definitely don't bleed. I call them the "bootstrap" crowd, as in, "You ought to be able to pull yourself up by your bootstraps and not rely on the government for help!" And the woman who sent the "They're just lazy" letter was typical of those folks.

I hope your letter helps people understand that not all of us are lucky in life and that some of us barely have any bootstraps to grab onto, let alone pull ourselves up by!

Anyway, let me offer you some advice about your potential claim for divorced wife's benefits. As you know, the rules do state that a divorced woman has to be married 10 years before she can claim benefits from her ex's Social Security account. But there are different ways to define "marriage." And if you live in a state that recognizes a common-law relationship, that can be just as legally valid as a traditional marriage.

So it certainly is worth a shot to try to claim benefits. As I point out so often in this column, you have every right in the world to file for any kind of Social Security benefit for which you think you might be eligible.

You'll need to get to a Social Security office to do this. You should make an appointment by calling them at 800-772-1213. There's a pretty good chance whomever you're talking to will say, "You're not eligible, so there is no need to file a claim." But again, you have every right to do so, and you must insist on applying for benefits.

When you file a claim, you make the process a legal one. That is very important. Without actually signing an application form, you have only the (possibly wrong) opinion of the person to whom you are talking. And that's worth nothing. But by filing a claim, you have legal rights, including the right to appeal the claim if they turn you down the first time.

As part of this process, you're going to have to come up with some kind of proof that you had a common law relationship with this man that lasted more than 10 years. Or in your case, a traditional married relationship for 9 years and 11 months, and a common-law one for at least one month before that. The preferred proof would be something like tax returns or property records during the period before you were actually married that list you as a couple. Barring that, it could be a document as simple as a birthday card in which he wrote: "To my loving wife" or something like that. Even affidavits from friends and neighbors indicating they knew you as a couple before your marriage would help make your case.

You won't need a lawyer to file that first claim. Just fill out an application for divorced wife's benefits at a Social Security office and provide as much of the evidence discussed above as possible. If your claim gets denied, file an appeal immediately. The first appeal is really just an internal review of your case in a Social Security office, so no lawyer is needed for that either.

But if that first appeal is also denied, then the next step is a hearing before a Social Security judge. This is when you might get a lawyer. But don't pay for one. Almost every large community has an office that offers free legal counseling. It's usually called "legal services." These are generally staffed by young lawyers who take cases for free because they're trying to get legal experience. And I will bet they would love to take your case because it's so interesting.

Working with this attorney, you may just be able to come up with the proof and the convincing arguments you need to prove a common-law relationship and claim the divorced wife's benefits I think you are due.

 

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