After our divorce becomes final, am I entitled to any of my ex-spouse’s Social Security, retirement, or disability benefits?

Earnings during marriage are community property.

California divorce law states that any asset acquired during the marriage by earnings of either party is a community asset, owned equally by each spouse. The period of accumulation of assets ends at the date of separation. This means that any benefits earned after the date of separation are the separate property of the earner. Obviously, any retirement or other benefits earned AFTER separation do not belong to the ex-spouse. However, if the ex-spouse has a right to a portion of the retirement earned during the marriage, he or she can receive it later via a court order.

A special attorney or service will prepare a Qualified Domestic Retirement Order (QDRO) and send it to the Pension Administrator. The government never taxed these funds. So, it is always a good idea to put them into another retirement account and not take them out until your retirement. The ex-spouse is usually doesn’t get a portion of disability benefits. However, a court may consider them income for purposes of setting support. Also, a court will consider the earner spouse’s retirement benefits as income for purposes of setting support.

Social Security is not community property, but there are derivative benefits.

Unlike standard retirement assets, social security benefits accumulated during the marriage do not become community property.  Rather, an ex-spouse has a derivative right to Social Security benefits, based on the ex-spouse’s benefits, after a long-term marriage of more than ten years. The ex-spouse will get his or her share, and it does not come out of the spouse’s amount. To sum up:

To sum up:

  • In a marriage longer than ten years, an ex-spouse can get Social Security derivative benefits based on the spouse’s earnings.
  • You can collect your community share of retirement benefits after the divorce.
  • An ex-spouse usually has no right to a share of disability benefits since they exist to aid the disabled spouse.  However, the court will consider them as income when setting support.