Q:       When my husband and I divorce, will my Social Security benefits be affected?

A:        No. Under federal law, you qualify for Social Security benefits in one of two ways: by 1) earning credits, based on your annual earnings, which determine your monthly benefits when you retire; or by 2) being married to someone for more than 10 years, which qualifies you for a spousal benefit.

When you retire, you may choose whichever of these Social Security options provides you with the greatest benefit: 1) your earned credits into the system, 2) your current spouse’s spousal benefit or 3) the highest spousal benefit from a former spouse of a marriage that lasted more than 10 years.

            Some people have had more than one former marriage, each lasting more than 10 years. Let’s say you are a high wage-earner and have two former spouses from marriages lasting more than ten years each. Even if both of your former spouses claim and receive spousal benefits from your Social Security, it will not affect the amount of benefits you will receive. 

Q:       I’ve been receiving health insurance coverage through my wife’s work policy. Will my family health benefits lapse when we divorce?
A:        As a matter of strict law, family plan medical coverage terminates on the date of a “qualifying event,” which, in your case, would be the date of your divorce or dissolution of marriage. Federal law requires that, within 30 days of the termination of your benefits, your wife’s employer must notify you about the termination and inform you about COBRA coverage, if that coverage applies. (COBRA coverage allows workers and their families who lose their health benefits the right to continue to receive benefits provided by their group plan for a limited amount of time. If you qualify for a COBRA policy, you may be entitled to a maximum of 36 months of additional coverage. However, COBRA plans are expensive.)

            As a practical matter, most insurance companies will maintain your coverage through the end of the month of the final divorce hearing. Also, to avoid any lapses in coverage, any health insurance policy you may buy after your divorce will be retroactive, which means that it will cover you from the date that your family coverage was terminated.

Q:       How do I receive pension benefits from my soon-to-be-ex spouse?
A:        You and your spouse can divide pension benefits as a term of your divorce or dissolution of marriage. If your spouse’s pension plans are not “qualified” and are not protected by the federal Employee Retirement Income Security Act (ERISA), then they may be divided through a trustee-to-trustee transfer. This is just an administrative division that the appropriate financial professional can handle.

            However, most pensions, such as 401(k), 403(b) and some other defined benefit pension plans, are protected by ERISA. If your spouse’s pension benefits are protected, then the benefit must be divided through a “qualified domestic relations order” (QDRO).  The QDRO is a court order that allocates the retirement asset between the person who earned the benefit (the “plan participant” – your former spouse) and the “alternate participant” (you).  When your pension benefits are allocated, it is a non-taxable event. As long as you keep your share of the retirement in a qualified (retirement) account such as an IRA account, it will continue to grow as a tax free retirement account.

 

Q:       If I die in the middle of the divorce, who inherits my estate?
A:        The answer depends on whether you and your spouse signed a separation agreement before your death, and whether there is language in the separation agreement stating that the agreement will be binding if there is no final divorce decree. If you and your spouse have waived the surviving spouse rights in the separation agreement, which is almost always done, AND the agreement is binding in the absence of a final divorce decree, then whatever you and your spouse agreed to in the separation agreement can be enforced. If you and your spouse did not sign a separation agreement, then all spousal rights apply. 

This “Law You Can Use” article was provided by the Ohio State Bar Association. It was prepared by Cleveland attorney Manav (Manu) H. Raj, Esq. of Rieth Antonelli & Raj. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       I’m a veteran. What kinds of benefits might I be qualified to receive?

A:        You may be eligible for two kinds of monetary benefits: pension benefits and service-related benefits.

Q:        How do service-related compensation and pension differ?

A:        You may receive service-related compensation for an injury or disability related to your military service or for a previous disability that was aggravated during service or during an applicable “presumptive period.” A presumptive period is a period after military service during which the Department of Veterans Affairs (VA) will presume that specific disabilities originated or were aggravated during military service. For example, the VA will presume that arthritis that initially appeared during the first year after service is related to service if it is at least 10 percent disabling. The injury need not be combat-related, but it must be linked to an event, symptom or diagnosis that first occurred during service or (for presumptive conditions) during the relevant presumptive period.

            For example, treatment for skin cancer caused by an earlier, service-related sunburn might be compensated. Illnesses such as diabetes, Parkinson’s disease and certain heart diseases might be covered if you are a Vietnam veteran and were exposed to Agent Orange. There is no age or income requirement to qualify for this sort of compensation.

            To receive a pension benefit, you must be 65 years old or older, or you must be totally and permanently disabled.  Also, you must have served one day during a period of war, and 90 days of continuous service, unless you were injured and required to leave the service.

Q:       What is a “period of war” for purposes of qualifying for pension?

A:        Congress has established time periods for wars in which the United States has been involved since the 1940s, including World War II (Dec. 7, 1941 to Dec. 31, 1946); the Korean Conflict (June 27, 1950 to Dec. 31, 1946—and in some cases, to July 25, 1947); the Vietnam Era (Aug. 5, 1964 through May 7, 1975); the Persian Gulf War, and subsequent conflicts up to and including the present-day conflict in Afghanistan.   

                                               

Q:       Might my family members qualify for any benefits because I am a veteran?

A:        Yes. If, for example, you die leaving family members behind you, your veteran benefits may go to any of your dependents (including your spouse and dependent children, as well as your parents, if they are dependent on you).

Q:       Might I receive other benefits aside from pension and service-related compensation?  

A:          Yes. You can receive “Aid and attendance” (A&A) in addition to a pension if you can no longer do two or more of certain basic daily tasks, such as feeding, washing or dressing yourself. A&A is also available for any qualified veteran who is receiving service-connected benefits. It may also be available for the spouse of a veteran who has the same needs, even if the veteran is not receiving A & A.

Q:       If I apply for veteran benefits, how soon will my claim to be decided?

A:        Since veterans’ situations are unique, claims will take varying amounts of time—anywhere from a few months for pension to a year or even several years for (service-connected) compensation. Usually, more complex cases will take longer to be decided.

           

Q:       What happens if my claim for benefits is denied?

A:        You can appeal your claim through a Notice of Disagreement (NOD).  You must file your appeal within one year after your claim was denied or partially denied.

Q:       Who can appeal?

A:        You can write the appeal yourself or you can go through an accredited Veterans Affairs (VA) agent or certain other agents who are accredited.  Accredited agents may be attorneys or members of service agencies such as Disabled American Veterans. Generally only attorneys can represent veterans on appeals to the Court of Appeals of Veterans Claims.

Q:        How much will it cost me to file an appeal? 

A:        There is no out-of-pocket cost, and no one is allowed to charge a fee for helping a veteran apply for an appeal, although a fee can be charged for explaining the law in detail. The person you choose to represent you may charge a contingent fee, which may be paid directly by the VA, once your Notice of Disagreement has been filed and you have agreed to the fee in writing. There may be additional costs, as well. If you lose the appeal and receive no benefits, your representative will not charge you. If you win your appeal and receive benefits, the VA will pay the representative’s fee directly, unless you and your agent agree that you will pay the fee directly.

Q:       Who should I contact to get help in appealing my application for VA benefits?

A:        Visit any VA-accredited attorney or agent near you for help in appealing a VA benefit denial. The VA maintains separate lists of attorney representatives and non-attorney VA accredited agents. Also, the VA maintains a service center in each county to respond to veterans’ questions.  For more information, visit the VA website at www.va.gov.

           

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Akron attorney Betty Groner. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.