New York is an equitable distribution state, meaning assets and property acquired during marriage must be split fairly in a divorce. Social Security (SS) benefits, however, have different rules. In order to receive a portion of your ex-spouse's SS benefits, you and your spouse must have been married for at least 10 years, and you must not be currently remarried.
Other eligibility requirements
Individuals cannot begin withdrawing any SS benefits until at least the age of 62. To get the full benefit amount, you must wait until you reach full retirement age, which is either 66 or 67 depending on when you were born. Additionally, your own SS benefits cannot exceed your ex-spouse's, and you cannot start withdrawing an ex's benefits until he or she begins withdrawing benefits or until your divorce has been final for at least two years, whichever happens first.
Benefits entitlement amount
Even if you meet all of the above criteria, you will not be able to claim any portion of your ex-spouse's benefits if the portion to which you are entitled does not exceed your own benefits since you only get the greater amount of your ex's benefits and your benefits. The maximum that one ex-spouse can receive from the other is 50%. Thus, if your ex has a monthly benefit of $600 and yours is $500, you would get nothing from your ex, since $300 is less than $500.
How benefits are calculated and paid
If, for instance, you are entitled to 50% of your ex's benefits, and your monthly benefit is $500 and your ex's is $1,200, you would be entitled to $600 in benefits, but you will not get this entire amount from your ex. Instead, you will first receive a payment for $500 from your own benefits, then you will get a payment for $100 in supplemental divorce benefits, which is taken from your ex's benefits.
Even if you are not close to retirement, you should think about SS benefits when negotiating a settlement with your ex. A family law attorney can assist with negotiations and drafting a settlement agreement.