Social Security Benefits and the 10-Year Rule

Norris Family Law

As you probably know, “spousal benefits” are an important part of Social Security payments.  When a person is entitled to begin receiving Social Security, his or her spouse may also qualify for payments on account of the earnings of the primary Social Security recipient.  This is important when one spouse has accrued benefits because of his/her earnings, while the other spouse (typically the homemaker spouse) has not worked or has accrued only minimal benefits based on his or her own earnings. 

The rules for determining the date on which a spouse may begin receiving derivative benefits (i.e., those derived on account of the other spouse’s earnings history), and in what amount, are complex.  However, for spouses who are divorced, or are contemplating divorce, the important fact to be aware of is the ten-year rule.  This says that a spouse is entitled to derivative benefits if she or he was married to the earning spouse for a total of ten years; that is, ten years between the date the parties married, and the date their judgment terminating their marital status was entered.  A common misconception is that it is ten years between the day the parties marry and the day they separate; that is not correct.  So if, for example, parties separate 9 years and two months into their marriage, they should consider holding off entering their divorce judgment terminating marital status until another ten months have passed.  Otherwise any derivative Social Security benefits that would otherwise be available will be lost.

Here are some useful online sites that provide good information about Social Security benefit rights of spouses, former spouses, and surviving spouses:

Ssa.gov/pubs/10035.html  (“Retirement Benefits”, publication #01-10035)

Ssa.gov/pubs/10084.html  (“What Every Woman Should Know”, publication #05-10127)

Ssa.gov/pubs/10084.html   (“Survivors Benefits”, publication #05-10084)

(The above publications can also be ordered directly from the Social Security Administration.)

 

Social Security Benefits

Social Security benefits are received in one of two ways:  a) based on your own contributions, or b) based on your spouse’s contributions.  The latter are called “derivative” benefits, and to qualify, you need to have been married for at least 10 years.  In addition, your spouse must be age-eligible to receive Social Security retirement benefits, even if not actually receiving them. 

The 10-year rule for derivative benefits is sometimes misunderstood.  It means ten years between the date the parties married, and the date of their divorce—not the date they separated.  It is the date their marital status terminates. 

If a person’s marriage is approaching the ten-year mark, but is not quite there, it may be advisable to wait to get a divorce judgment until the ten years have passed, if a party is going to need the derivative benefits.