Social Security CardTwo decisions this month of the Appellate Division, Second Department, tied the termination of post-divorce spousal support (“maintenance”) to a specific ages: 65 in Duval v. Duval; and 62 in Sansone v. Sansone.

In Duval, after 20 years of marriage, the wife commenced her action for divorce. The decision reports that “both parties are 56 years old.” During the course of their marriage, the parties had two children, one of whom was emancipated. In 1992, shortly before the birth of their first child, the husband became the sole source of financial support for the family. The wife was a stay-at-home mother prior to the commencement of the action. In approximately 1999, the wife’s father, an insurance agent, retired, and the husband took over his father-in-law’s insurance agency [how important is this fact to the decision?].

Suffolk County Supreme Court Justice Carol Mackenzie awarded the wife $12,000 per month maintenance for 8 years, or until the husband retired, whichever occurred first. However, the Second Department modified the award and held:

Under the circumstances of this case, including the parties’ ages, respective earning potentials, predivorce standard of living, relative incomes, and available assets, the court should have awarded maintenance to the plaintiff in the amount of $12,000 per month until her 65th birthday.

The appellate court cited Gillman v. Gillman, 139 A.D.3d 667, 670-71, 31 N.Y.S.3d 164, 168 (2nd Dept. 2016), and Marley v. Marley, 106 A.D.3d 961, 962-63, 965 N.Y.S.2d 375, 376 (2nd Dept. 2013).

In Gillman, the Second Department ruled that there the duration of maintenance should be until the earliest of the wife’s eligibility for full Social Security retirement benefits, her remarriage, or cohabitation pursuant to Domestic Relations Law §248, or the death of either party.

In Marley, the Second Department ruled that there the lower court should not have permitted maintenance payments to end upon the wife’s attaining the age of 62 or upon the defendant’s retirement. Rather, the Supreme Court should have awarded the wife maintenance until the earlier of the wife’s attaining the age of 66, the husband’s retirement, the wife’s remarriage, or the husband’s death.

In Sansone v. Sansone, the parties were married for approximately 11 years before the action for divorce was commenced. During the proceeding, Orange County Supreme Court Justice Sandra B. Sciortino awarded the wife pendente lite maintenance of $7,700 per month, retroactive to August 2, 2012. This amount remained in effect until April 30, 2014, after which date Justice Sciortino directed the husband to pay the wife maintenance in the sum of $6,000 per month until the wife reached the age of 59½, at which age she could access deferred tax funds without penalty, and thereafter, to pay the wife 4,000 per month until the wife reaches the age of 67 or such age that she would qualify for full Social Security benefits.

The Second Department ruled, however, that even taking into account the wife’s limited work history and documented health issues, including a diagnosis of multiple sclerosis that predates the marriage, Justice Sciortino’s maintenance award directing the husband to pay gradually reduced maintenance over a 22-year period was excessive.

The appellate court noted that in the years immediately prior to and during the divorce proceedings, the wife worked part-time as a bank teller, had taken a course in medical billing, and worked as a volunteer part-time intern in the medical billing department of a not-for-profit health organization. Under the circumstances of this case, taking into account, inter alia, the parties’ standard of living and the wife’s health and work history, the Second Department held:

It is more appropriate to award maintenance in the sum of $6,000 per month over a six-year period, to be followed by maintenance in the sum of $4,000 per month until she reaches the age of 62 or such age that she would first qualify for Social Security benefits.

Linking a maintenance award to Social Security considerations makes an awful lot of sense. However, often detailed calculations need be made in light of the particular ages of the divorcing spouses and each spouse’s work record.

If you are divorced, and the marriage lasted 10 years or longer, you can receive benefits based on your ex-spouse’s record (even if the ex-spouse has remarried) if:

  • You are unmarried;
  • You are age 62 or older;
  • Your ex-spouse is entitled to Social Security retirement or disability benefits; and
  • The benefit you are entitled to receive based on your own work is less than the benefit you would receive based on your ex-spouse’s work.

Your benefit as a divorced spouse is equal to one-half of your ex-spouse’s full retirement amount (or disability benefit) if you start receiving benefits at your full retirement age. (The benefits do not include any delayed retirement credits your ex-spouse may receive.) If your ex-spouse has not applied for retirement benefits, but can qualify for them, you can receive benefits on his or her record if you have been divorced for at least two years. See, Social Security Retirement Planner: If You Are Divorced.

Full retirement age is the age at which a person first becomes entitled to full or unreduced retirement benefits. Full retirement age (also called “normal retirement age”) had been 65 for many years. However, beginning with people born in 1938 or later, that age gradually increases until it reaches 67 for people born after 1959. No matter what your full retirement age is, you may start receiving benefits on your own work record as early as age 62 or as late as age 70. If you start benefits before your full retirement age, your benefits based on your own record are reduced a fraction of a percent for each month before your full retirement age.

The Social Security administration provides a chart that lists age 62 reduction amounts and includes examples based on an estimated monthly benefit of $1000 at full retirement age. For someone born after 1959 who elects to receive their benefits at age 62, the amount to be received will be only 70% of the person’s full retirement benefit.

Care should be taken in a divorce to have each spouse obtain his or her own work record. Perhaps the easiest way is for each party to obtain a “my Social Security Account” statement for a work history and benefits calculation. With them, the parties will be able to maximize the benefits to the non-monied ex-spouse at the least cost to the monied ex-spouse.

In Duval, Dennis T. D’Antonio of counsel to Weg & Myers, P.C., of Manhattan, represented the wife. Greenspoon Marder, P.A., P.C., of Manhattan (Judith A. Ackerman of counsel; Preston Stutman & Partners, P.C. [Robert M. Preston], former counsel on the brief), represented the husband.

In Sansone, Andrew  J. Proto and Jonathan C. Scott of counsel to Riebling, Proto & Sachs, LLP, of White Plains, represented the husband. Robin J. Kantor & Associates, PLLC, of Suffern, represented the wife.