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‘Ex’ factor: Divorce and Social Security

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POSTED June 15, 2012 9:52 p.m.

Q. My brother recently got a divorce. His ex-wife must have had a better lawyer than he did because she inserted language into the divorce decree specifying how much of his Social Security she will get. I believe it's an extra $500 per month, and this is over and above what she will get through regular Social Security law on his account. Is there anything my brother can do to get out of this financial obligation?

A. Your brother has nothing to worry about. And your former sister-in-law really didn't have a better lawyer — just a very naive one.

There is no language that an attorney can scribble into a divorce decree that takes precedent over federal law. And that law prescribes exactly who is eligible for benefits as a divorced wife and how much she will get.

In a nutshell, the rules say that a divorced woman will be eligible for somewhere between one-third to one-half of her ex husband's Social Security benefit (depending on her age when she files for benefits) if she is at least 62 years old; if her husband is at least 62 years old; if she was married to him at least 10 years; if she is currently unmarried; and if she is not due higher benefits on her own Social Security record.

So your ex sister-in-law won't get a nickel more of your brother's Social Security than what the law allows her to receive — no matter what the divorce decree says.

This situation is a bit of a twist on a much more common divorce decree issue I've dealt with many times in past columns. Normally, I hear from a divorced woman, who tells me that her husband inserted language into the divorce decree that says something like this: "My wife will not be eligible for any benefits as a former wife on my Social Security account."

Once again, that clause isn't worth the paper it's printed on. A divorced wife will get exactly what Social Security law says she will get.

But these greedy husbands may be relieved to hear that any benefits paid to their ex-wives do not take anything away from their own retirement payments. Nor if they remarried does the money paid to an ex offset any spousal benefits the new wife might be due on their accounts.

One final point: Social Security also pays benefits to divorced husbands. But they rarely get such payments because their own Social Security retirement benefit is generally higher than anything they might be due from an ex-wife.

Q. I was married to my ex husband for 30 years. I have not remarried, although he did. (He married the woman he was sleeping with while we were married!) Since our divorce, he has gotten a much higher paying position — through his new wife's family's influences. I never worked outside the home because he wanted me to be home with our kids. So I don't have a Social Security account of my own. He says he won't sign up for Social Security until he's at least 70 because he doesn't need the money. But I do. So I have two questions. We are both 62 now. Do I have to wait until age 70 to get any of his Social Security? And whenever I do get it, will my benefits be based only on the income he had during the years we were married?

A. I've got good news for you — and then even better news! And I hope this double dose of happy news makes up for that bad news husband you were married to!

The first bit of good news is that you are eligible for benefits right now on his Social Security account. The law normally says that a woman can't get dependent wife's benefits from her husband until he is getting benefits. But the rules were liberalized for women just like you — divorced women whose former husbands are intent on sticking it (Social Security-wise) to their ex. The law says you can get a divorced wife's benefit on his record even if he isn't getting benefits himself. He just has to be old enough to qualify for Social Security. And he is. You said he is 62.

The second bit of good news is that your benefit rate will be based on his entire earnings history — not just the period of time that you were married. So at least in a small way, you'll share in the bounty he's received from his former mistress's family!

Q. I am 65 years old. My husband recently died. We were married only 8 years. Friends tell me that I had to have been married for 10 years to qualify for widow's benefits. Is this true?

A. No, it's not true. The 10-year duration of marriage rule applies only to claims for benefits as a divorced wife or widow. But you were still married to your husband when he died, so you are eligible for widow's benefits right now.

You should contact your local Social Security office to file an application right away. Call them at 800-772-1213, or file online at www.socialsecurity.gov. And if you were married before, you will possibly have two options. You are certainly due widow's benefits from the man you were recently married to, but if you can get higher benefits from a prior husband's Social Security account, you will get those benefits instead.

 

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