By Jennifer M. Paine
Attorney, Cordell & Cordell, P.C., Detroit office
If the prospect of a penniless retirement leaves you shaking, you might want to delay your divorce until you have been married at least 10 years. That's what some people are learning the hard way.
Here is an overview of the Social Security Act’s divorced spouse Social Security retirement benefits to consider as you contemplate divorce, negotiate your settlement, or select the date to make your decree effective.
Genevieve George learned her lesson the hard way. She divorced her husband, Vito, in the summertime of 1950 in Detroit. They married on November 9, 1940. Their judgment of divorce was effective six months after their final hearing on May 3, 1950 – that is, November 3, 1950, just six days shy of their tenth wedding anniversary. During the marriage, Genevieve completed high school, attended college for two years, and began working for the US Department of State. She retired in 1980 and applied soon thereafter for a little-discussed form of Social Security, divorced spouse derivative retirement benefits, based on Vito’s Social Security eligibility. To her dismay, the Social Security Administration denied her application because she and Vito were not married for ten years. A ten year marriage, with limited exceptions, was required.
Call it desperation or confusion over bureaucratic red tape and regulations, or both, Genevieve thought she could get around the Social Security Act’s 10-year marriage requirement by changing the effective date of her divorce. She convinced Vito and her divorce court judge to change the effective date of the judgment of divorce to November 17, 1950. The meeting was secret in the judge’s chambers, and no records save an amended judgment existed. She completed her application once more, this time noting her marriage lasted 10 years. But, once again, the Social Security Administration denied the application.
The reason? Her divorce was final on November 3, 1950, six days too soon, regardless of what an uncontested amended judgment had to say, because that was the date the State of Michigan officially dissolved the bonds of matrimony. Rather than retirement money, even if it were change on the dollar Vito received, Genevieve got a chiding in court for trying to circumvent the Social Security Act. See George v Sullivan, 909 F2d 857 (6th Cir. 1990).
What are these benefits, and could you qualify? Here is an overview of the Social Security Act’s divorced spouse Social Security retirement benefits to consider as you contemplate divorce, negotiate your settlement, or select the date to make your decree effective.
What are divorced spouse retirement benefits?
The focus of this article is retirement benefits. These are also known, in Social Security Act lingo, as Old-Age benefits. They are designed to be a wage replacement for workers and their families when the worker’s income decreases or terminates due to retirement, death or disability. They require proof of insured status, which the worker obtains by reaching a certain age and paying into the Social Security program through taxes on wages. (Thus the Social Security notations you see on your paystub.)
As a matter of federal preemption, state divorce courts do not have the power to divide Social Security retirement benefits when a couple divorces. Social Security is a matter of federal law, and the federal government has give the Social Security Administration the power to administer it. At most, state courts can make binding findings of fact and conclusions of law about the validity of a marriage and the date the marriage will terminate, as Genevieve discovered in George v Sullivan. See, e.g. 42 USC § 402.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.