May 8, 2021

Volume XI, Number 128

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Ex-Spouse in New Jersey May be Able to Maximize Expected Social Security Benefits after Divorce

As some readers may know, our Social Security system permits a divorced person (once eligible for benefits in the normal course of events) to receive the greater of (a) the amount he/she would be entitled to in their own name or (b) 50% of their ex-spouse’ benefit provided that the parties had been married for at least ten years and the person has not remarried.

Although New Jersey law generally holds that the marital partnership terminates upon a filing for divorce, the parties remain legally married until the subsequent entry of a Judgment of Divorce.

For Social Security purposes, the latter rule also applies. For example, if a person has been married for 9 ½ years when a divorce complaint is filed, the actual divorce date will govern whether he/she is permitted to exercise option (b) above. Under this model it behooves the person to delay the entry of a Judgment of Divorce for six months so that they qualify for this benefit. If a spouse qualifies and selects the 50% option, it does not change the other party’s benefit payments—the ex-spouse will still be entitled to 100% of the expected payout.

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COPYRIGHT © 2021, STARK & STARKNational Law Review, Volume VII, Number 10
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About this Author

John S. Eory, Stark and Stark Law, Divorce Lawyer, Family Attorney
Shareholder

John S. Eory is a Shareholder and Co-Chair of Stark & Stark’s Divorce Group. John limits his practice to divorce, custody, domestic violence and other family law matters. He is the former Chair of the New Jersey Supreme Court District VII Ethics Committee. John is a lecturer for the New Jersey Institute for Continuing Legal Education and the New Jersey Association for Justice and has appeared as a speaker on television and radio with regard to family law topics. John was selected by the Mercer County Bar Association and the New Jersey Commission on Professionalism in...

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