Divorce and Social Security Benefits

When you divorce, all of your income and assets obtained during the divorce are subject to distributions that are not covered in a pre or post-marital agreement. Not all forms of income are treated the same, but all may come into play. There are special rules for certain assets such as pension funds, retirement benefits, and Social Security benefits. In this article, our Las Vegas divorce attorneys discuss how Nevada state law and federal law deal with divorce and social security benefits.

Social Security is Income

In addition to considering how Social Security benefits will be divided upon divorce, it is important to remember that Nevada courts consider Social Security benefits to be “income” for the purposes of calculating alimony and child support. If one party is receiving Social Security benefits, those funds will be considered when deciding whether to award alimony or child support and how much to award.

Future Social Security Benefits Are Not Technically Community Property

The treatment of Social Security in divorce is complicated by the interaction between federal and state law. Nevada state law governs divorce, but Social Security is a program governed by federal law. Future Social Security benefits are actually an entitlement to benefits in accordance with the Social Security Act. Federal law provides that such benefits are not transferable or assignable and are not subject to any legal process. Federal law preempts any conflicting state law, such as Nevada family law. Social Security benefits cannot be divided in a property settlement agreement. All information in this article is subject to change. Therefore, it’s important to consult with an experienced divorce attorney to be aware of the current status.

When Can an Ex-Spouse Receive Social Security Benefits?

If only one party to the divorce is entitled to Social Security benefits, or if they are entitled to significantly greater benefits than the other spouse, then the other spouse might be entitled to a portion of the recipient spouse’s benefits. Very specific rules govern when a former spouse can receive a share of their ex’s Social Security benefits, however.

General Divorce and Social Security Provisions

First of all, the spouse seeking benefits must be at least 62 years old, must have been married to their ex for at least 10 years, must now be unmarried, and must not be eligible for a higher Social Security benefit based on their work record. If those factors are all true, then that spouse could be eligible to receive a portion (50%) of their ex’s social security benefits.

To collect, however, additional factors must be in place. The ex (the source of the benefits) must also be at least 62 years old and must be eligible to receive Social Security benefits. They do not have to be actually receiving the benefits yet, but they must be eligible. There are other complications and potential routes to collection based on specific circumstances.  For example, if the ex-spouse (who would be entitled to Social Security benefits) is deceased, and the divorced spouse does not remarry before age 60, they might be able to collect benefits as a former spouse.  Talk to your divorce attorney about your Social Security benefits and eligibility to discuss the specifics of your situation.

Birthday is Also a Factor

According to the United States government’s social security benefits website, the following also applies: “If your ex-spouse was born before January 2, 1954, and has already reached full retirement age, they can choose to receive only the divorced spouse’s benefit and delay receiving their own retirement benefit until a later date.”

“If your ex-spouse’s birthday is January 2, 1954 or later, the option to take only one benefit at full retirement age no longer exists. If your ex-spouse files for one benefit, they will be effectively filing for all retirement or spousal benefits.”

Trusted Legal Advice For Your Las Vegas Divorce

Call an experienced Las Vegas divorce attorney for assistance with your divorce or divorce-related matter. Our expert divorce lawyers in Las Vegas are ready to lead you through all aspects of your divorce case, including division of complex assets, alimony, child custody disputes, and all other related issues. Call 702-222-4021 to speak directly with one of them about a consultation.