New Jersey divorcees are often surprised to learn they or their former spouses are not eligible for Social Security spousal or survivor benefits after a divorce. The regulations governing Social Security benefits for divorced spouses frequently cause confusion and lack of clarity with regard to what a spouse is entitled to. Two key points govern divorced-spouse payouts: the "10-year rule" and whether the non-beneficiary spouse remarries before age 60.
The 10-year rule requires that spouses be married for no less than 10 years to be eligible for each others' Social Security spousal and survivor benefits unless certain criteria are met. Typically, obtaining a divorce before the 10-year period is complete negates any claim to the beneficiary spouse's Social Security benefits. In addition, the non-beneficiary spouse may not remarry before age 60 in order to be able to collect any spousal benefits.
If a non-beneficiary spouse remains unmarried after the divorce or does not remarry until age 60, and the 10-year rule is met, upon the beneficiary spouse reaching 62 years of age the non-beneficiary spouse may file for spousal benefits without having to wait for the beneficiary spouse to file. However, the non-beneficiary spouse may not be eligible for as high a benefit as waiting might otherwise confer if this benefits route is selected.
When beginning divorce proceedings, an attorney may choose to begin by looking at how long the marriage lasted and how federal Social Security regulations may affect the ability of either spouse to claim benefits. The attorney might counsel the client on what the potential benefits-related implications of the case might be and what current rules govern survivor and spousal benefits as well as other financial factors that might have bearing on the case.