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S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2510
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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I am getting ready to retire from teaching (PERA). My ex-husband

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I am getting ready to retire from teaching in Colorado(with PERA). My ex-husband is also getting ready to retire in Rhode Island(with social security). Because of "windfall provisions" w/ PERA, I cannot receive both social security & PERA on my own, even though I have paid into both through the years. ...My ex-husband lives with another woman now, but we were married for 13 years. Will I be able to claim a social security benefit through him since his social security will be much more than mine (I think I get a small percentage of my actual s.s. payment since I will be receiving PERA retirement payments)? -Stephanie
If you are divorced after at least 10 years of marriage, you can collect retirement benefits on your former spouse's Social Security record if you are at least age 62, the benefit you are entitled to receive based on your own work is less than the benefit you would receive based on your ex-spouse's work, and if your former spouse is entitled to or receiving benefits. If you remarry, you generally cannot collect benefits on your former spouse's record unless your later marriage ends (whether by death, divorce, or annulment).

HOWEVER, since you will receive a pension for work not covered by Social Security (your PERA pension), any Social Security benefits you may be eligible to receive on your spouse's record may be reduced. This type of benefit reduction is called Government Pension Offset (GPO). To assess how your PERA benefits will affect your social security benefits, I recommend you looking at the links on this Social Security website:
Customer: replied 7 years ago.

[I'm a bit confused with this web page "accept answer" format; I only can only spend $28! Have I goofed then with 2 sets of questions?]

1. I am guessing that my ex-husband's social security (based on his whole career's work history) will be much more than my social security (since I taught most of the time & will receive PERA benefits..). If I elect to receive his social security benefit, will it reduce his monthly amount for himself?

2. Do I have to contact him to let him know that I will be collecting from his ss benfit?

3. What if I elect to claim a ss benefit from his record (rather than mine, even though both will be reduced), and the woman he's been living with claims it, too? He has not married her in the conventional sense, but they may be considered married by common law standards. (We do not communicate on these matters at all..we divorced in 1984.)

Thanks again. -Stephanie

First, I'm willing to answer your questions without your paying more money, although I cannot speak to the policies of other experts, so if you use this service in the future, they may have different ideas.

If you decide to pursue your husband's benefits, you do not need to tell him yourself, but Social Security will notify him.

You cannot choose to use only his benefits and not yours. Social Security will pay your social security benefits before paying you your ex-husband's benefits except in the following circumstance:

If you are at "full retirement age" (which varies based on your date of birth but is always at least 65 years old) you can choose to receive only your ex-husband's benefits now and delay receiving retirement benefits until a later date. If retirement benefits are delayed, a higher benefit may be received at a later date because delaying your benefit gives you a higher benefit when you actually start collecting.

The amount of benefits you get on your ex-husband's account has no effect on the amount of benefits your ex-husband or his current spouse may receive. But, in case you are still curious, common law marriage does exist in Rhode Island so it is possible that the woman he currently lives with might also have some right to his social security retirement benefits.

In order to establish a common law marriage in Rhode Island, a couple must have "seriously intended to enter into the husband-wife relationship." Demelo v. Zompa, 844 A.2d 174 "The parties conduct also must be of such a character as to lead to a belief in the community that they were married." Demelo v. Zompa 844 A.2d 174 "The prerequisite serious intent and belief is demonstrable by inference from cohabitation, declarations, reputation among kindred and friends, and other circumstantial evidence." Demelo v. Zompa, 844 A.2d 174. A crucial element to common law marriage is whether a couple holds themselves out to the community as husband and wife.

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If you found my advice helpful, I would appreciate it if you would choose the "Accept" option. Otherwise, all the funds you pay go to the company and I do not receive any payment. Thanks!
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