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Social Security

Social Security and Divorce

Social Security Benefits

According to Federal law concerning Social Security Benefits:

The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

42 U.S.C. § 407(a).

However, according to 42 U.S.C. § 402, upon divorce, an ex-spouse of an individual who is entitled to old age or disability insurance benefits shall be entitled to those benefits as well. See 42 U.S.C. § 402(b) and (c). See also Bell v. Bell, 257 Ga. 172 (1987) and Rabek v. Kellum, 279 Ga. 709 (2005). This means that although an ex-spouse is not entitled to an award or part of all of his or her ex-spouses Social Security benefits, that ex-spouse may be entitled to receive Social Security benefits on account of his or her ex-spouse. Additionally, divorced spouses may also be eligible to collect Social Security retirement benefits based on their ex-spouse's work record. As long as the divorced spouse is sixty-two or older, is unmarried, was married to the worker for at least ten years, and is not entitled to benefits on their own or another account that exceed one-half of the wage earner's primary benefit amount, the divorced spouse is generally eligible to collect benefits. The wage-earning spouse doesn't have to be retired and drawing benefits; he or she has to be eligible for retirement benefits.

Establishing eligibility for a divorced spouse to receive Social Security benefits on account of their ex-spouse usually is not difficult, as it merely requires the ex-spouse seeking the benefits to present the appropriate documentation to the Social Security Administration. Typically, the documentation that must be presented includes proof of identity, each party's age, marriage, and divorce. Note that the divorce must be final, and the legal action cannot be an annulment action or a separate maintenance action.

A divorced spouse may also be eligible for benefits based on a deceased wage earner ex-spouse if the wage earner was eligible for benefits. Requirements are similar to those outlined above, except that the surviving divorced spouse must generally be at least sixty years of age. Additionally, the surviving divorced spouse may remarry after age sixty if they desire to without forfeiting their benefits. The benefit received by the surviving ex-spouse will be approximately equal to the wage earner's primary benefit amount.

Although it is generally not difficult to seek and receive Social Security benefits on account of an eligible ex-spouse, it is always advisable to seek the counsel and aid of a qualified divorce attorney to ensure that you are fully and correctly informed concerning your interests.

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