10 Years Means 10 Years—Not 9 years, 364 Days, and 6 Hours

10 Years Means 10 Years—Not 9 years, 364 Days, and 6 Hours

Moon v. Shalala, ND New York No. 93-CV-1267 (October 4, 1994).

Issues: How is the length of a marriage calculated for purposes of determining whether one is considered a “surviving divorced wife” under 42 U.S.C. §416(d)(2)? Does an individual who is just one day short of being married for 10 years count as a “surviving divorced wife” entitled to the Social Security benefits of her former spouse?

Decision: The Federal District Court of the Northern District of New York determined that the length of marriage for purposes of 42 U.S.C. §416(d)(2) excludes the first day of marriage but includes the final day of marriage. The court further determined that for the purposes of being considered a “surviving divorced wife” under 42 U.S.C. §416(d)(2), the parties must have been married for exactly 10 years or longer—even being short one day of 10 years will make the spouse ineligible for benefits.

Pursuant to federal law, to be eligible to receive survivor Social Security benefits of her deceased former spouse, a woman must be married to her spouse for “a period of 10 years immediately before the date the divorce becomes effective.” 42 U.S.C. §402(e); 42 U.S.C. §416(d) (please note, this benefit is not solely for women, there are separate provisions related to a “surviving divorced husband”). In this case, the Husband and Wife were married on December 13, 1969. On December 12, 1979, the court filed the final, granted divorce decree. The Husband died on May 14, 1992. Subsequently, the Wife filed for divorced surviving wife benefits under Social Security. The administrative law judge granted the Wife’s application. He determined that, as a practical matter, the Wife and Husband had been married for 10 years thereby entitling her to a survivor benefit. However, the Appeals Council reviewed the case and determined that the Wife was married one day less than 10 years. According to the Council, when calculating the length of marriage, the first day of marriage is not counted and the last day is counted. As such, the Wife needed to be married to the Husband until at least December 13, 1979 to be eligible for surviving divorced wife benefits. The Appeals Council determined because the Wife was married for one day less than 10 years, she should not receive any benefits related to her former Husband’s Social Security.

The Wife appealed the decision to the Federal District Court of the Northern District of New York claiming that the first day of marriage should be considered toward the 10-year requirement. In the alternative, even if the first day of marriage is not considered, it is inequitable, inapposite to good conscience, and inapposite to the meaning of the Social Security Act to deny her benefits as she was only short of the 10-year requirement by less than a full day (the final decree was filed only 18 hours before the start of December 13, 1979). The District Court rejected the Wife’s arguments and agreed with the Appeals Council, that the federal law is clear—one must be married at least 10 years to receive Social Security benefits from their former spouse. There is no consideration of equity; either the parties were married for 10 years or they weren’t.  

Observation: This case is indicative of how other courts have treated Social Security’s 10-year rule. For the purposes of receiving either survivor benefits or retirement benefits based upon a former spouse, the marriage must have lasted at least 10 years—no exceptions. See James V. Astrue, 519 F. Supp. 2d 193 (D.Mass., 2007). As a DR attorney, you must be aware of the length of the parties’ marriage. Because, as demonstrated by this case, even a few hours can make a huge impact on the benefits your client will receive.

How we can help: We have been in the business of advising DR attorneys on how retirement assets are treated in divorce for over 30 years. We are aware of how DB plans, DC plans, military pensions, state pensions, and even Social Security benefits are treated in a divorce. We are able to advise you on the best course of action for you and your client when it comes to retirement benefits.

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