California family law has a presumption that under most circumstances, property acquired by either spouse while married becomes part of the marital estate and is subject to division upon divorce. There is one notable exception, and that is Social Security benefits. This is because these payments are governed by federal instead of state law, and a California judge lacks the authority to divide them after divorce.

Federal law mandates that Social Security benefits earned by one spouse remains their separate property after divorce. This can be worrying if you were a dependent spouse who did not work enough outside the home to qualify for much in the way of Social Security employment credits. Under certain circumstances, however, you may be able to collect a derivative benefit based on your former spouse's earnings record.

Spousal benefits were made available during an era when few women worked outside the home for long enough periods of time to earn their own Social Security benefits. Today, many women earn even more than their husbands and collect higher benefit amounts as a result, so men have the right to seek these derivative benefits too.

Derivative Benefit Requirements

There are two different sets of criteria for eligibility, depending on whether your former spouse is living or dead at the time you apply for benefits. Should they still be living, you can receive benefits based on their work record if:

• You are aged 62 or older.
• Your former spouse qualified for Social Security benefits for a period of at least 10 years prior to the divorce taking effect.
• You are currently unmarried.
• The benefit you are entitled to receive based on your own employment history is less than the amount you would receive based on your former spouse's record. Although you cannot collect both benefits, you may opt to receive the higher one.

It does not matter if your former spouse has remarried. Provided you have been divorced for at least two years prior to applying, you are eligible. This derivative benefit has a base amount of 50% of your ex's benefit total, although it can be reduced if you are receiving other types of income.

If your ex is deceased at the time you apply for their benefits, you may apply for survivor benefits if you are aged 60 or older (50 if you are disabled), if your ex earned work credits for at least 10 years of the marriage, and if your own benefit would not be higher than what you could claim on their record. There is also a requirement concerning your marital status: you must not have remarried before you turned 60 (or 50 if you are disabled) but remarrying after 60 is permitted.

Given the complex rules regarding derivative Social Security benefits, you are advised to seek information and advice from an experienced California family law attorney at least one year before you are potentially eligible. For assistance in reviewing your circumstances, determining your eligibility, and making formal application for benefits, contact Ahluwalia Law P.C. today.