timing
May 8, 2020 | by Chris Stein, CFP®, Finance Instructor at Colorado State University
Ten-Year Divorce Benefit: What If I Barely Fall Short?

A listener would like to know if her boyfriend’s mom can file for the 10-year divorce benefit if her divorce date barely falls short of ten years.

“My boyfriend’s mom is having trouble with the 10-year divorce benefit. She got married on September 28, 1979 and got divorced August 16, 1989. They fall short by a couple days of the 10-year rule. Could she still apply?”

The 10-year rule you refer to is how long you have to be married for you to receive spousal benefits after a divorce. They are called ‘divorced spouse benefits.’

Unfortunately, the answer to whether your boyfriend’s mom would qualify is ‘no.’ The 10-year requirement is what it sounds like: you have to be married for ten years, and they use the anniversary date. So, the person would have to make it to September 28, 1989 before divorcing.

This is bad timing. And whoever handled the divorce possibly did both spouses a disservice. We always assume the wife is going to benefit from claiming on the ex-husband’s record as an ex-spouse. But, sometimes, it works out for both, and they each have spousal benefits they can take advantage of.

But, in this case, it’s sad. The couple will not qualify for ex-spouse benefits because they didn’t achieve the ten years. They came close, but close doesn’t count. They fell short by a few dozen days.

I have never seen someone successfully ask for a waiver of this rule, where Social Security overrides the requirement. I don’t think ex-spouse – or ex-spouse survivor – benefits are in the cards. (They both require ten years of marriage.)

Some unusual situations are worth mentioning. In one case, after being divorced 18 years, one spouse called the other to announce they were not divorced. Apparently the judge forgot to sign the order, so they had to go back and do it all over. So, it’s worth checking the actual date on the divorce decree.

Another slim chance is that they were married before the official marriage date. They might be able to claim a case of ‘common law marriage,’ where they could argue they were legally married before September 28, 1979.

While it varies from state-to-state, in some cases, it is extremely easy to declare common law marriage. Check the rules in the relevant state. If the divorce was amicable and the rules are flexible, the ex-husband may be willing to work with his ex-spouse. It won’t affect his claiming at all – such as reducing his benefit – even if he’s remarried. Nor will it reduce his new spouse’s benefit in any way. He has nothing to lose here.

If they have proof, the couple may be able to convince Social Security that they were married long before their actual wedding date. What if they held themselves out as being married, took vacations together, possibly even filed a joint tax return? (Most people think they need to be married to file a joint tax return, but they can be common-law married.)

The Social Security Administration does honor common law marriage. If the ex-husband is saying, “My ex-wife is right, we were holding ourselves out as married long before that, and here’s our proof,” it might work. It might come down to the person taking the application.

There is no guarantee it will work, but the more evidence they can find that the couple was married, especially according to the rules in their state, the better. And it can’t hurt. The worse that can happen is that Social Security says ‘no.’

To wrap up, based on the information you provided of their wedding and divorce dates, they would not qualify. But there are some slim chances. Maybe the marriage certificate was issued several weeks before the actual wedding, and they are using the wedding date in their calculation. Or perhaps the final decree did not get signed exactly when they were notified that the divorce was final. And the divorce is not valid until the court signs it.

Or the common law marriage argument could work.

In short, everything is worth a try. Those are valuable benefits. And if they don’t try, they’re never going to possibly get it.

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