In a divorce, in San Diego Superior Court, there are often a division of assets and debts. In addition, in a divorce, the legal status of married is terminated. As such, in a divorce, social security benefits are not the same as for married spouses. Derivative social security benefits for divorced spouses may be available however the law is complex. The federal law is supreme over the state law and social security is governed by federal law. Social security benefits are separate and apart from a division of retirement such as a defined benefit plan or defined contribution plan or IRA or others in the same category. As such, in a divorce, these assets would be divided by California state law while the derivative benefit would not. In most marriage settlement agreements, the language is clear that the social security benefits are the separate property of the spouse who accrued them and some do not know they may have a derivative benefit available to them.
Under the federal law of the United States, social security insurance benefits which are earned by the spouse who is the employee during marriage are the employee spouse’s separate property and the San Diego Superior Court does not have jurisdiction to divide. There is, however, the derivative benefit which may be available under certain circumstances. The base amount of this derivative benefit amount to 50% of the employed spouse’s primary insurance amount but this can be subject to reduction for types of income which the divorced spouse may receive.
The derivative benefit is payable to the divorced spouse [of either gender] who can satisfy all the requirements as set forth below.
- Must have filed an application for insurance benefits.
- Must be 62 years of age or older.
- Must not have remarried with the exception of marrying another spouse who is entitled to social security benefits.
- Is not entitled to disability or old age insurance benefits or is entitled to disability or old age insurance benefits based on a primary insurance amount which is less than 50% of the employee spouse’s primary insurance amount.
- Must have been married to a person who was entitled to old age or disability insurance benefits for a period of at least 10 years immediately before the effective date of the divorce.
- Can satisfy the 2 year waiting period. This waiting period is waived if the working spouse was receiving benefits before the divorce.
Given the rules regarding derivative benefits, it is advisable for the divorced spouse to obtain information from the San Diego Social Security Office well before the time the derivative benefit would be applicable and it is prudent to consider this at least one year before the derivative benefit is eligible.
If you have a question regarding your divorce, please feel free to contact us for a confidential consultation.