At first, divorce law and Social Security law may seem unrelated. However, I’ve been practicing both for more than 25 years and understand how it can be beneficial for family law attorneys to be well informed about Social Security.
This includes basic Social Security payments for retirement. And as importantly, it includes laws about Social Security disability benefits, which can have an impact on issues like child support, alimony and health insurance.
Let’s start with basic retirement payments under Social Security: When couples are divorcing the length of their marriage should be noted. For instance, did you know that anyone who was married for at least 10 years is able to file for Social Security benefits based on the employment record of the ex-spouse?
For the lower-earning spouse or one who didn’t work outside the home, this can be very helpful. They are likely to receive more based on the other spouse’s record because Social Security payments are based on average earnings. Generally, the more you earned during your work life, the higher your monthly benefits will be.
Upon retirement age, ex-spouses who were married at least 10 years are entitled to half of their former spouse’s monthly benefit. If the former spouse is deceased, ex-spouses from 10-year-plus marriages fall in the same category as widows or widowers: They are entitled to 100 percent of the former spouse’s benefit.
I have many clients who are divorcing in their 50s and at this age Social Security always should come into the picture when structuring divorce settlements. When we look at issues like alimony, I want to know how much Social Security each spouse will be expecting, which is possible by getting estimates based on earning records from the Social Security Administration.
If, for instance, a wife wasn’t in the workforce for most of the marriage, she will have very low Social Security payments based on her own record. Or she could have none at all. To qualify for Social Security, people must have paid into the system for 40 quarters, which is the equivalent of 10 years of employment.
When an ex-wife will need alimony, we need to consider what will happen if her ex-husband is closer to retirement or retired. For instance, the amount of Social Security she receives based on his record could be subtracted from the monthly alimony payment as a modification.
Looking ahead is important when creating divorce settlements, and this is one of the ways to prepare.
SSDI and SSI
The regulations around Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) are more complicated and probably aren’t well known by most divorce attorneys.
But they can be important for some families who are in the midst of a divorce. Having a family law attorney who understands this part of Social Security law is a real asset.
Social Security Disability Insurance is an insurance program that protects workers if they are disabled. It is based on work records with benefits determined by past average earnings of the worker. Disabled workers also must have paid into the Social Security system for a certain time period that varies with age.
Supplemental Security Income, on the other hand, isn’t based on earnings or work records. It is for people with limited income and resources who are disabled, blind or elderly.
I encourage people who have disabilities that prevent them from working to apply for SSDI, if they have an eligible employment record. They will need to meet strict guidelines to prove their disability under the law but if they are unable to work, this federal program can be a lifesaver for both themselves and their children.
When people are declared disabled and approved for SSDI, their dependents also will receive monthly benefits. This often is a higher amount than what the disabled parent would be paying child support. These payments for dependents can be a lifesaver for children and keep families afloat when one parent can’t work or support them.
As far as Supplemental Security Income, or SSI, there are some important caveats to understand about eligibility. If the divorce attorney doesn’t understand these regulations, it could be harmful for the person on SSI.
Here’s one example of what needs to be considered: Whether a divorce settlement or alimony award will disqualify the person who is receiving SSI because they have crossed the income or asset threshold (even if they would be living on a very small amount).
A key concern is that being kicked off SSI results in losing eligibility for Medicaid, the government health insurance program for the poor. People on SSI are insured through Medicaid, and losing access to healthcare can be disastrous for those who are disabled and living on little money.
At the Jeanne Coleman law office, we’ve helped thousands of clients through family law and Social Security law. If you are looking for a lawyer, we offer free 20-minute consultations. Call (813) 253-2820.