3. Are there Social Security benefits based on a former spouse's employment credits?
Yes. There are two types of Social Security benefits linked to a former spouse: retirement and survivor benefits. The threshold requirement for each is that the marriage lasts at least 10 years.
Retirement benefit eligibility: The claimant must be 62 or older; and if the claimant has remarried, he or she may not be able to collect these benefits unless the later marriage ends.
The claimed benefits must be higher than those earned by the claimant. The amount of the benefit is 50 percent of the former spouse's retirement. By the way, the former spouse's check is not reduced by 50 percent, which is the amount the claimant receives. If the claimant has been divorced for two years from the former spouse, then the claimant is entitled to benefits, even though the former spouse is eligible but not yet receiving benefits.
It is possible to begin receiving retirement benefits either on the claimant's or the former spouse's Social Security income record at age 62, then switch to the other benefit upon reaching full retirement age if the other benefit is higher.
Benefits end when either the claimant or former spouse dies, when the claimant is entitled to retirement benefits based on income credits in an amount equal to or greater than the former spouse's, or if the claimant before age 60 remarries someone other than the former spouse.
Survivor benefit eligibility: Survivor benefits are 100 percent of the former spouse's retirement benefit. The claimant must be at least 60 years old (or 50, if disabled); not entitled to retirement benefits in an amount that is equal to or greater than that of the former spouse's benefit; and not remarried unless the claimant married again after age 60 or is currently 60-plus and remarried between the ages of 50 and 60 (or is at least 50 years of age, remarried after turning 50 and is disabled).
If other survivors are eligible for benefits, such as a subsequent spouse of another 10-plus year marriage to the deceased, benefits are not affected. Multiple marriages could produce multiple former spouses receiving an amount equal to more than 100 percent of the deceased's benefits.
"Piggy-backing" benefits may be an option. If the claimant is collecting survivor benefits, then he or she can switch to their own retirement benefits as early as age 62 if the claimant's retirement benefit is higher than the survivor benefit.
Every divorcing spouse should have a copy of their most recent Social Security benefit statement (available online from the Social Security Administration) and that of his or her spouse as a point of comparison.
4. How are retirement assets divided?
It depends on the type of retirement asset.
One form of retirement is a pension plan, called a defined benefit plan, that pays out monthly payments at a specific age, with the amount determined by salary and length of employment. The monthly payment can be divided between the spouses when the benefits are distributed. An important document to review is the Summary Plan Description. A separate court order, called a QDRO (Qualified Domestic Relations Order) spells out:
• How the pension payments are divided.
• Whether direct payments will be made to the nonemployee former spouse.
• What type of survivor benefits are in place.
• Who will receive cost-of-living adjustments.
Pension plans are like an annuity and may need to be valued by an actuary, especially if they are awarded entirely to one spouse.
The other type of retirement is a defined contribution plan such as a 401(k). [An IRA retirement account is divided similarly.] They are much easier to value and divide. The value is the current market value of the assets held in the account. Depending on when the funds will be tapped, the value may be reduced for estimated taxes. Spouses may agree to split the account, or let one spouse take the entire account after offsetting its value with other assets.
After the divorce, there is a trustee-to-trustee transfer of funds/assets into a new individual retirement account for the spouse who was not the original holder of the account. Sometimes these accounts are divided by percentages, sometimes by dollar value. If you do the latter, problems can arise if there are extreme market shifts in value between the time the agreement is reached and the account is actually divided. Dividing by percentages also spreads the risk and tax implications when account assets have different tax bases.
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