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  • Writer's pictureChris Stein, CFP®

The 10-Year Rule: Months Literally or Calendar Years?

Jim and Chris are asked to address the topic of the 10-year rule for spousal benefits:

“I have a client that was married 9 years and 10 months to her ex. Is the 10-year rule counted by months literally or by calendar years?”

The Social Security system has a rule that says if you were married for ten years and you get a divorce, you still have the right to claim Social Security benefits based on your ex-spouse’s work record. The benefits granted to ex-spouses are even slightly more liberal than those available to married spouses.

Social Security decided on a rule to apply to people who have been in long-term marriages. Traditionally, the injured party was the stay-at-home spouse, the one who didn’t work and who raised the kids. If the couple got divorced, that spouse got left behind while the higher-earning breadwinner got to keep their big old Social Security benefit. Financially, it was very unfair. The rule is not for everybody, but as long as you were married for ten years, you can claim spousal benefits like you were still married.

Many people misunderstand how Social Security works. They think that giving a spousal or survivor benefit to one person takes it away from someone else. It doesn’t, even if the spouse with the work record remarries. All the spouses get the benefits, as long as they qualify. You either earned it, or you didn’t. That’s why people worry about staying married for ten years.

But the 10-year rule is hard and fast. To meet it, you have to reach the 10th anniversary of the date you were married. It is annual and – in the case of the reader’s client – 9 years and 10 months don’t quite make it.

The client should have had a better lawyer because delaying the divorce for an extra two months would have unlocked the door to spousal benefits.

Here, unfortunately, being married 9 years and 10 months is roughly 60 days away from keeping a lifetime opportunity for claiming spousal benefits from the ex-spouse’s record. The question was, “Is this really true?” Yes, it is. You have to make it to the tenth anniversary of your marriage.

Still, there are a couple of things to check. First, check the state in which they resided. See if, by chance, they could have been legally married before their wedding date due to a common-law circumstance. There are states (Colorado being one of them) that have very liberal definitions of common law marriage. (Social Security does honor common law marriage.) If you could make the case that they were really married for more than ten years, because of a technicality like this, that might open the door then to spousal benefits.

The other suggestion is to recount. Check the anniversary against the divorce decree. What counts is when you officially become divorced, on a court-decided date, which would be the date of the decree. It’s not when you file for divorce, as that’s just the beginning of the process. Hopefully, you’ll find that the client squeaked in on a technicality. But the 10-year-rule does require that your marriage reaches the 10th anniversary to qualify, and nothing less.

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