Divorce and Social Security Benefits in New York

New York Divorce Info: By New York Divorce Attorney

You may be eligible to receive social security benefits of a former spouse. The laws in this area are convoluted and an analysis of eligibility should be made on a case by case basis. Bear in mind, though, that “social Security benefits are not subject to equitable distribution but may be taken into account when determining maintenance awards.”

The general rule seems to be that if you were married for at least ten (10) years to your spouse and then you divorce, you are eligible for social security benefits under the following circumstances:

Your former spouse is fully insured at the time you apply for benefits

You and your former spouse have reached the age of 62 (if you reach 62 before your former spouse you generally cannot receive benefits till your spouse turns at least 62 or is receiving retirement benefits)

2a. If your spouse dies before he or she is 62 or in retirement, it will affect the amount of the benefit you get, if you get a benefit.

You are unmarried

You have filed an application for benefits (if your spouse is dead and you want to receive a lump sum payment you must file within two years of death; if your spouse is not dead, is at least 62, and you meet the other criteria, you will receive a benefit so long as you are divorced at least 2 years.)

You are not entitled to benefits on your own (or if you are, what you are getting is less than your former spouse’s primary insurance)

You are alive (when you die benefits stop you cannot pass it on to your heirs).

Your former spouse is alive (if your former spouse is dead you may be entitled to surviving divorced spouse benefits if you are at least 60, filed for benefits, was entitled to receive benefits when your spouse died, and you are unmarried and not entitled to receive old age insurance benefits; if you are between 50-60 then you must be able to show disability. If you can’t you have to wait till 60 to get benefits).

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