TN 20 (12-05)

Citations:

Social Security Act Section § 203, 223(e)(2)

Regulations 20 CFR 404.401

Section 5127 of Public Law 101-508

A. Policy - work

A spouse's or divorced spouse's benefit is subject to the following deductions.

1. Spouse’s benefit

A spouse's benefit is subject to deductions because of:

• the spouse's own work (see RS 02501.095) or

• the NH's work.

2. Divorced spouse’s benefits

Apply the following for divorced spouse’s benefits:

• Prior to 1/1/91, benefits were subject to deductions because of the NH's work if the couple had not been divorced for 2 continuous years

  EXAMPLE: The NH divorced the spouse in January 1988. The first full month that benefits would not be subject to deductions would be February 1990.

• After 12/31/90, OBRA '90 legislation waived the 2-year waiting period if the NH was entitled to RIB in the month prior to the month of divorce. Therefore, after 12/31/90, benefits are not subject to deductions because of the NH’s work if either (1) the couple has been divorced for at least 2 continuous years, or (2) the NH was entitled to RIB in the month prior to the month of divorce. (See RS 02501.021B.5.b.) The retroactive life of the NH's application may be used to establish the NH's entitlement in the month prior to the month of divorce.

NOTE: Benefits are not payable to the divorced spouse of an age 62 or older disabled number holder (NH) whose disability benefits are suspended during an Extended Period of Eligibility (EPE).

B. Policy - child in care

1. Spouse’s benefit

A spouse's benefit is subject to deductions if the spouse is under FRA and does not have a child of the worker (NH) in care. (See RS 01310.001.)

See RS 01310.001A for policy when a spouse is receiving benefits because he or she has a disabled adult child in care and that child’s benefits are in suspense due to an extended period of eligibility (EPE).

2. Divorced spouse’s benefits

Divorced spouse’s benefits are not subject to deduction for failure to have a child in care (see RS 00202.020A.6.).

C. Policy - WC/PDB

1. Spouse’s benefit

A spouse's benefit is subject to deductions if the worker is DIB and is entitled to Workers' Compensation/Public Disability Benefits (WC/PDB) which cause offset.

2. Divorced spouse’s benefits

Apply the following for divorced spouse's benefits:

• Prior to 1/1/91, benefits were subject to deductions because of the NH's WC/PDB offset if the couple had not been divorced for 2 continuous years. See EXAMPLE in RS 00202.035A.1.b.

• After 12/31/90, a change of position waived the 2-year waiting period if the NH was entitled to the current DIB in the month prior to the month of divorce. Therefore, after 12/31/90, benefits are not subject to deductions because of the NH’s WC/PDB offset if either (1) the couple has been divorced for at least 2 continuous years, or (2) the NH was entitled to the current DIB in the month prior to the month of divorce. The retroactive life of the NH's application may be used to establish the NH's entitlement in the month prior to the month of divorce.

D. Policy - GPO

The spouse/divorced spouse benefit is offset if he or she receives a government pension based on his or her earnings in non-covered work and no exceptions apply.

Independently entitled divorced spouses are subject to GPO. The exception to GPO which requires one-half support may be applicable. The only applicable point for meeting the support requirement is at the beginning of a period of disability. When the worker is not alleged to be disabled, the divorced spouse cannot meet the one-half support requirement and may, therefore, be subject to GPO. See GN 02608.104.

E. Reference

See RS 01301.020 - Considering the Period in Determining Support for Stepchildren

See RS 00202.035 - Spouse's Benefits - Deductions