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Divorce and Social Security Benefits
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Divorce and Social Security Benefits
Knowing how and when to apply for Social Security benefits can be a confusing process, especially if a person is divorced. Clients often have questions about whether he or she is entitled to a portion of the ex-spouse’s benefits, and the best way to pursue collecting those benefits.

Our Baltimore Social Security Disability lawyers share some common questions from divorced individuals who want to know what they are eligible to receive and the steps they should take to collect the Social Security benefits they deserve.

A divorced client in her early 60s with some medical issues is considering signing up for Social Security. Her ex-spouse passed away the previous year. What are her Social Security filing options?

One option would be to file for reduced retirement benefits, which would provide 75 percent of the full retirement age rate. This is the least ideal option from a financial standpoint. A second option would be to file for retirement and disability benefits simultaneously. You can start to receive a retirement payment almost immediately while waiting for the disability claim to be processed. Once approved, the Social Security check will increase to the full retirement age rate. A third option is to file for reduced divorced widow’s benefits and switch to your own Social Security benefits, which could have a higher payout. Finally, you could pursue options two, and switch to full divorced widow’s benefits at age 66.

A client shared a business with her ex-husband for years prior to the divorce. She was responsible for the bookkeeping, including the tax returns. Unfortunately, she recorded all the earnings from the business on her ex-husband’s tax returns. Does she have any legal right to pursue half of those earnings?

Unfortunately, she should have filed what’s known as a Schedule SE for herself and her husband, one with her Social Security number on it, and the other with her husband’s. It is unlikely that she will be able to file amended tax returns as it would be an extremely time consuming process, and would require the ex-husband’s cooperation.

However, once the ex-husband reaches the age of 62, she can collect divorced wife’s benefits in his Social Security account. If her ex passes away before she does, she will receive 100 percent of his Social Security from the divorced widow’s benefits.

A 62-year-old divorced woman finds out that her ex-spouse is collecting Social Security and wants to know if she is due anything on his record.

While the ex-husband is still alive, she may collect the difference between her benefits rate and approximately one third of his retirement check. When her ex-husband passes away, she can receive up to 100 percent of the amount he was receiving at the time of this death, assuming she is 66 years of age.

Is there a minimum amount of years a client needs to be married in order for her to receive part of her spouse’s Social Security?

Women filing for benefits from an ex-husband must have been married for at least 10 years.

ABOUT THE AUTHOR: Maximillian F. Van Orden
Mr. Van Orden regularly represents individual clients before the United States Bankruptcy Court for the District of Maryland, the Social Security Administration, the Workers’ Compensation Commission, and the District and Circuit Courts of Maryland. Currently, Mr. Van Orden is a member of the National Association of Consumer Bankruptcy Attorneys (NACBA) and the National Organization of Social Security Claimants Representatives (NOSSCR).

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By LeViness, Tolzman & Hamilton, PA 
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
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