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San Jose Divorce Lawyer Discusses Divorce and Social Security Beneifits

San Jose Divorce Lawyer Discusses Divorce and Social Security Beneifits
Many people who are getting divorced are concerned with collecting Social Security benefits from their former spouse, and want to know if language to that effect needs to be included in any final judgment. In fact, Social Security benefits are controlled by federal law, so no specific language is needed.

The basic rule is that any time a marriage lasts 10 years or more, the divorced spouse with the lower earnings record can collect retirement benefits based upon the record of the higher-earning spouse. In addition to the required 10 years of marriage, there are four key qualifications to collect divorced spouse benefits:

• The person seeking to collect must not have remarried.
• This person must be 62 or older.
• The benefit this person would collect based on his or her own earnings record must be smaller than what they would collect on their former spouse’s earnings history.
• The ex-spouse must be entitled to Social Security retirement or disability benefits on their own.

The benefits collected by a divorced spouse does not reduce the benefits received by the other spouse. Nor does it reduce benefits paid to a subsequent spouse of the former spouse. If you remarry, you generally cannot collect on your former spouse’s record unless the later marriage ends by death, divorce or annulment.

If the ex-spouse has not yet applied for retirement benefits but does qualify, you must have been divorced from him or her for at least two years before you can begin collecting against his earnings record Another common concern is what if the former spouse dies before you can collect Social Security benefits from him. You will qualify for survivor benefits as a divorced spouse, just as if you had been married to him at the time. And you always retain the right to the benefits you earned based on your own work history. You don’t give those up even if you collect against your ex-spouse’s record. This could be an issue if you ever remarry yourself. You also can begin by collecting Social Security through a divorced spouse benefit first and delay receiving your own retirement benefits until a later date.

Here at Sagaria Law, we offer a full range of family law and legal services including divorce, paternity, adoption, child custody and visitation matters, child support, spousal support, alimony, juvenile dependency, domestic violence, division of property, grandparent visitation and custody, etc. We have seven Northern California locations including San Jose, San Francisco, Redwood City, Fremont, Salinas, Roseville and Sacramento. We offer a free thirty minute consultation, either in person at any of our offices, or over the phone. Call our offices today and we can connect you with an attorney immediately or we can schedule your free consultation with one of our family law attorneys: (408) 279-2288 or (800) 941-6730 or visit

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