How are Social Security Derivative Benefits Divided in a San Diego Divorce in 2014?

CAN A SAN DIEGO SUPERIOR COURT JUDGE DIVORCE SOCIAL SECURITY INSURANCE BENEFITS IN A DIVORCE?

All divorce cases are heard in San Diego Superior Court. In the US, there are state courts and federal courts. State courts can make orders which are not enforceable under federal law. One of these areas in for division of social security benefits. While the income from the social security benefit may be used for child and/or spousal support calculations, the social security benefit itself cannot be divided as opposed to, for example, a federal retirement. Under US federal law, the Social Security insurance benefits which are earned by the employee spouse during marriage are their separate property. As such, while the income can be used for support calculations, the San Diego Superior Court Judge has no jurisdiction to award or divide for equalization purposes as well.

WHAT IS DERIVATIVE BENEFIT SOCIAL SECURITY IN THE CONTEXT OF A DIVORCE IN SAN DIEGO SUPERIOR COURT?

While the social security benefit itself may not be divided, there is a benefit from social security which the divorced spouse may be entitled to. This is called a “derivative benefit” and is based upon the working spouse's FICA/OASDI contributions during employment. As with the employee's primary benefit, this is the separate property of the other spouse and is governed by federal law. The base amount of this benefit equals one-half of the employed spouse's primary insurance amount however this is subject to reduction for specific types of income which the divorced spouse has.

WHO IS ELIGIBLE FOR THIS DERIVATIVE SOCIAL SECURITY BENEFIT IN THE CONTEXT OF A DIVORCE?

This benefit will be payable to a divorced spouse if they satisfy the following requirements:

  • have filed an application for insurance benefits
  • are 62 years of age or older
  • have not remarried with some exceptions
  • is not entitled to disability or old-age or insurance benefits
  • is entitled to disability or old age insurance benefits based on a primary insurance amount which is equal to less than 50 of the primary insurance amount of the spouse who was the employee
  • was married to a person entitled to disability or old-age insurance benefit for a period of 10 years immediately before judgment date of the divorce
  • satisfies a 2-year waiting period under federal law as applicable

If the divorced spouse meets these requirements, then they are entitled to begin receiving derivative benefits on the first month in which they meet all of the mandatory requirements. It is important to note that the amount of benefits a divorced spouse receives has no effect on the amount of benefits the primary social security beneficiary receives.

WHEN SHOULD YOU CONTACT SOCIAL SECURITY IF YOU THINK YOU ARE ENTITLED TO DERIVATIVE BENEFITS IF DIVORCED OR LEGALLY SEPARATED?

You can feel free to contact the San Diego Social Security Office anytime for information. The link for the Social Security Administration website is below for your ease of use. Certainly, no later than two years before eligible for benefits. The federal law, as the state law, changes so make sure to verify all information in this article and this applies to all articles and blog postings for the law firm.

http://www.ssa.gov/

HOW CAN A LOCAL SAN DIEGO LAW FIRM HELP WITH YOUR FAMILY LAW CASE?

The law firm of Doppelt & Forney, APLC has experience with family law cases involving social security as well as many other aspects of family law. Please feel free to call for a complimentary and confidential consultation up to 30 minutes.

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