Robert G. Smith, PLLC

Claiming an ex-spouse's Social Security benefits

Social Security benefits extend to spouses, and that benefit does not necessarily end with divorce. New York residents who are divorced may be entitled to benefits from an ex-spouse's Social Security, but this depends on various factors, and the rules are somewhat complicated.

Someone who is divorced cannot claim the Social Security benefits of his or her ex-partner if the marriage lasted less than 10 years. Ex-spouse benefits can also not be claimed if the claiming spouse remarries, except under certain circumstances. If someone remarries at the age of 60 or older and their ex-spouse has died, they may claim their ex-spouse's benefit. The rules become more complicated when there are multiple divorces, or if two divorced people marry. Generally, if someone is already claiming ex-spousal benefits and they remarry, they can continue to claim the ex-spousal benefits.

Full Social Security benefits are based on an individual's work history, and are available at full retirement age. At age 62, reduced benefits may be available. A spouse can claim whichever benefit is larger; their own or their spouse's.

When a couple seeks a divorce, the issue of property division is handled under New York law as one of equitable distribution. This means that property will be divided fairly, but not necessarily equally. There is an important distinction between marital property and separate property. Separate property is property that was held by one spouse prior to the marriage or acquired during the marriage by gift or inheritance. If a divorcing spouse is unsure of the distinction, a family law attorney might be able to help explain the differences and aid in drawing up a divorce settlement agreement that includes asset division.

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