Social Security Benefits

San Diego, California has long been known as a retirement community however this has changed considerably over the last decade. For family cases and divorce cases, the issue of the division of the social security benefits are a common question. This arises in family law and divorce cases in which one spouse was employed and the other spouse was not employed or the social security benefits for each spouse are not the same. Given the importance of the social security benefit for retired divorced clients, this is a significant issue.

In San Diego, California, there are several social security offices and below is a listing of the current locations: 1333 Front Street in San Diego; 8505 Aero Drive in San Diego; 380 Third Avenue in Chula Vista; 7961 University in La Mesa; 2160 South El Camino Real in Oceanside; 846 Arnele Avenue in El Cajon and 367 Via Vera Cruz in San Marcos. Locations and hours change and vary so always call first prior to traveling to one of these locations.

In San Diego, California, the law which applies is determined by the Judge. In the case of social security benefits, the Judge will use the federal law which is superior to the state law in these family law and divorce cases. Under federal law, the insurance benefits earned by the employee spouse during marriage are his/her separate property under the social security system. The spouse who has not worked, however, may be entitled to a derivative benefit based upon the working spouses contributions to this system. This is considered the separate property of the non working spouse as the primary benefit is the separate property of the working spouse.

As to the implications for family law and divorce, the benefit is payable to a divorced spouse if they meet the following criteria: was married to a person entitled to social security benefits for a period of ten years immediately before the date of the final divorce decree; has not remarried; is 62 years of age or older; has filed their application for social security insurance benefits; satisfies a two year waiting period and meets the entitlement criteria regarding the insurance benefits. As with all federal law and rules regarding social security derivative benefits, the law and rules are complicated and it is advisable to contact the closest local social security office well prior to the date any benefits are likely to be awarded. In family law and divorce cases, if the marriage is one of less than ten years but close to ten years from date of marriage to date of judgment, a legal strategy would be to delay entry of judgment of the final decree of divorce until after the ten year period to try for eligibility of the derivative benefit.

If you have questions regarding the applicability of social security benefits to your family law or divorce case, please contact our office for a complimentary consultation.

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