By: H. Joseph Gitlin
Q: My husband has been the primary breadwinner in the family. Will I lose social security benefits on his account if there is a divorce?
A: A former spouse, age sixty-two or more, who has not remarried, can receive social security benefits on account of the other spouse if the marriage lasted more than ten years. When the worker spouse retires, dies or becomes disabled, the former spouse can often receive monthly benefits equal to fifty percent of what the worker spouse receives.
Q: If my spouse’s pension plan is not in pay status, that is, my spouse is not retired, how much of the pension plan will I receive and in what form will I receive it?
A: First, to the extent the pension plan was earned during the marriage, it is marital property, that is, it will be divided in the divorce. For example, if your spouse has been in the pension plan for thirty years and you have been married for twenty-five years, the pension plan is 25/30 (or 5/6) marital property.
You can take your interest in the pension plan out in one of several ways: (1) The pension plan is evaluated and you may take out your interest in cash and roll it over into your own individual retirement account, within sixty days. If you do not roll it over into your own retirement plan within sixty days, you will pay income tax on all of it in the year received, plus a 10% penalty. (2) The court can enter a QDRO (qualified domestic relations order) which carves out of your husband’s pension plan your interest. You will be entitled to exercise all of the options your spouse can in reference to the plan, including early retirement.
Q: Will the court divide my husband’s social security benefits as a property right, the same way as a pension plan is divided?
A: No. The law is that social security benefits are not regarded as an asset which will be divided in the divorce judgment, however, the income your spouse receives from social security will be considered in regards to maintenance and child support payments.
Q: Take a marriage in which the husband and wife are seventy years old, they have been married for forty-five years, they are both retired and both receiving social security. How will the court divide the assets and incomes?
A: There are insufficient appellate court cases with a fact scenario as above so I can make a prediction. My sense of fairness is, under the circumstances, the court ruling should be that the parties will have equal assets and equal incomes, so the party with a higher income, because of higher Social Security benefits and higher pension benefits, would be paying maintenance to the other.
Jon D. McLaughlin, Esq.
Cannell & Maulson, P.C.