THIS LAW IS NO LONGER IN EFFECT AS OF NOVEMBER 2015
As if a trial, losing half of your retirement and a potential liability to support your wife long after your divorce is final were not enough, you may be worrying about Social Security, too --
Does your wife get half of your Social Security when you retire? After all, she gets half of everything else you earned during your marriage, right? As we’ve explained in other articles, “everything” really does not mean everything (not gifts, inheritances, passive appreciation, etc.), and this is particularly true for Social Security. As a matter of federal law, your wife may receive Social Security based on your earnings, but not half of yours.
Your ex-wife may qualify for divorced spouse benefits. These are Social Security benefits based on the former spouse’s earning record. To qualify, the ex-spouse must have been married to the earning former spouse for at least ten years, must be at least age 62 and must not be entitled to a higher benefit based on his or her own earning record. The ex-spouse must also be unmarried, though there are limited exceptions for ex-spouses whose latter marriage ends by divorce, annulment or death and for ex-spouses who remarry to someone with a disability. Finally, the earning former spouse must be entitled to receive his or her own benefit, and, if he or she has not yet applied for it, the ex-spouse must be divorced for at least two years before divorced spouse benefits are paid.
The divorced spouse benefits your ex-wife receives have no effect on the benefits you receive.
But that is not all. Your ex-wife may also receive individual benefits or a combination of both. If your ex is eligible for benefits based on her own record, she will receive those first. But if she has reached her full retirement age, she can elect to receive the divorced spouse benefits now and delay receiving her own benefits until a later date, which could result in a higher benefit based on her own record due to the effect of a delayed retirement credit.
The maximum amount your ex-wife can receive, based on your earning history, is one-half of the benefit you would receive at full retirement age. These may also be reduced by her age if she is not full retirement age when she receives them. However, if she has the option to delay her own benefits, and the payments do not affect your own, she can hardly complain – she may even be in a better position than you, and that is worth a reminder when you are trying to settle your case or trying to reduce your alimony liability with a judge worried about long-term financial security.