California Family Law Attorney
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April 25, 2010
  When do SOCIAL SECURITY BENEFITS commence after divorce?
Posted By Thurman Arnold

Q. When do Social Security Benefits begin after I divorce, and what might I be entitled to?


A. Although retirement benefits can begin at age 62, the amount received will be at least 20 percent less than the full benefits would be at normal retirement age.

These are 65 years if born before 1937; for those born between 1938 and 1954, between 65 years and 2 months to 66; from 1955 to 1960, 66 years plus 2 months for each year after 1955; and, if born after 1960, benefits begin at 67.

When a divorced dependent spouse elects to receive benefits at age 62, these benefits will be reduced by about 25%. Medicare benefits do not begin until age 65, except as recently changed in the federal health legislation.

This means that conditioning a reduction of alimony upon anticipated receipts at age 62 will result in an important lifetime loss of retirement benefits and may necessitate the purchase of health care insurance until age 65.

Another important limitation on when benefits can begin is when a divorced spouse seeks to collect derivative benefits based upon the earnings of a former spouse who has not yet applied for benefits, even though they are age 62 or older and have qualified for benefits.

In such situations the dependent spouse must wait until two years after the entry of the divorce decree to begin collecting these derivative benefits (they are entitled to collect the benefits they themselves paid in). Pay attention to this if you are the older spouse.

By the way, Social Security benefits are obviously governed by federal law. They are not "property" within the meaning of California family law. There is nothing to divide - and the benefits get distributed by the feds no matter what a settlement agreement or stipulated judgment says.

Have more questions about Social Security in divorce?

Thurman W. Arnold III


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April 25, 2010
  Are SOCIAL SECURITY benefits income for purposes of SUPPORT calculations?
Posted By Thurman Arnold
Q. Are my social security benefits includible as income to me for purposes of my spousal support and child support application?


Pursuant to California Family Code section 4058 gross income for purposes of child support "means income from whatever source derived". Subsection (1) specifically identifies social security benefits as included.

While FC section 4058 is a child support statute, there is no companion definition of income for temporary spousal support and as a result section 4058 is generally applied to that context as well.

The question often arises whether Social Security is inputted into the support calculation as a taxable or nontaxable benefit - federal taxes are imposed on some of Social Security benefits, depending upon on combined income (the sum of adjusted gross income plus nontaxable interest plus one-half of Social Security benefits). The bottom line is that ask the Court to include it within "other taxable income" to avoid paying both taxes on the income and higher child or spousal support!

Have more questions about how divorce impacts Social Security?

Thurman W. Arnold III


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