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My mother has been married to my mother for 40 years. They…

Customer Question
My mother has been...

My mother has been married to my mother for 40 years. They have been separated for 20 years. He paid child support but they were never legally separated or divorced. She was a stay at home Mother and wife for 20 years. She was recently laid off. He has always earned an above average salary and continues to earn a six figure income. Is she entitled to his social security?

Lawyer's Assistant: Because family law varies from place to place, can you tell me what state this is in?

NY

Lawyer's Assistant: Have you talked to a lawyer yet?

No

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Just if she is entitled to any compensation on any level under those circumstances.

Submitted: 7 months ago.Category: Family Law
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Answered in 13 minutes by:
11/30/2017
Family Lawyer: Edward Young,
 replied 7 months ago
Edward Young
Category: Family Law
Satisfied Customers: 512
Experience: Principal Attorney at The Law Offices of Edward D. Young, III
Verified

Hi. My name is ***** ***** I am a licensed attorney. I would be happy to provide assistance. Please give me a moment to formulate a response. Also, please keep in mind that our conversation does not include an attorney-client relationship and this is for general information purposes only.

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Customer reply replied 7 months ago
Thank you
Family Lawyer: Edward Young,
 replied 7 months ago

It turns out that the Social Security Administration has a black-and-white definition of marriage. Either you're married or you're not. The rules make no specific provisions for the gray no-man's (or woman's) land of legal separation.

Since your mother is legally married to your father, even though they are estranged, she is his spouse. Therefore, all of the rules regarding spouse's benefits apply to her.

That means in order for the wife to claim spousal benefits—worth 50% of her husband's benefit amount—he has to file for his benefits. Or, now that he has reached his full retirement age, he could file and suspend his benefits, triggering spousal benefits for her while deferring his own until they are worth the maximum amount at age 70.

Delayed retirement credits are worth 8% per year for each year you postpone collecting benefits between your normal retirement age, currently 66, and age 70.

I don't know whether their relationship is cordial, but if they are on speaking terms, the decent thing for your father to do would be to file and suspend so your mother could collect spousal benefits.

Unfortunately, she does not have the added protection that divorced spouses have that allow them to claim retirement benefits based on their ex-spouse's earnings record without his or her knowledge, even if the ex has not yet claimed benefits.

To claim Social Security benefits on your ex, your marriage must have lasted for at least 10 years and you must be unmarried. And as long as both spouses are at least 62 years old, and they have been divorced for at least two years, one can claim spousal benefits on the other's earnings record, even if he or she has not yet retired.

But remember that anytime a spouse or worker claims benefits before their full retirement age while they continue to work, their benefits may be reduced if their earnings exceed this year's limit of $15,120.

I hope this helps.

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Family Lawyer: Edward Young,
 replied 7 months ago

Do you have more questions? I gave you a lot to digest. Basically, she is entitled to spousal benefits even though they are separated. The issue is that your father is still earning well. Once he reaches his full retirement age (if he hasn’t already) he should file for and suspend his benefits, This would allow your mother to claim spousal benefits. If you tell me what city in New York you live in, I can recommend some highly rated lawyers to help you figure this out.

Please go ahead and rate me. I get no credit for my work if you do not rate me. Thanks.

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