Full question: I am the full time caregiver of our disabled 21 year old – we were together for 13 years, married for 9.6 legal and 3 years common law, divorced in 2008 and he has not helped or seen disabled child since. He has just retired – 21 year old disabled daughter is receiving Social Security under him – I am 54. Can I apply for benefits as sole caretaker of our disabled daughter?

Hello,

Ex-spousal benefits are only eligible for spouses who were married at least 10 years.

This means that at least 5 months of the “common law” years of the relationship must be considered a “marital relationship,” and therefore eligible for marital Social Security benefits, in the state which you resided in.

Each state has different versions of marital relationships, such as “domestic partnerships,” that are sanctioned by the state, so it depends on how your state treats “common law” relationships.

If you do qualify for a 10-or more year marriage that ended in divorce, you may then be eligible to receive Disabled Adult Child-in-care spousal benefits, at your current age, and/or ex-spousal benefits after age 62.

Generally, the Social Security Administration will recognize a common-law marriage as valid if the following requirements are met:

1. First, the common law marriage must be contracted in a state where common-law marriages are recognized. Less than half of the fifty states recognize these relationships as legally binding. In states that do recognize common-law marriage, usually the parties must live together and hold themselves out to the public as husband and wife. The cohabitation does not have to be in the State where the marriage agreement was made.

2. Second, there must be (or have been) an agreement to marry. This agreement must:

a. Propose a permanent union that is exclusive
b. Be in the present tense
c. Propose a marital status that cannot be terminated at will but can be terminated only in the same manner as a “traditional” marriage, i.e., death, divorce or annulment

3. Third, the marriage must be entered into by mutual consent of the couple to become husband and wife from that time forward.

4. Finally, both individuals must be legally capable of entering into a valid marriage such as having the mental capacity to marry or not otherwise be legally married to someone else at the time of entering into the common-law marriage.

If you need individualized and expert support, please request a free consultation at RSSA.com.

Take care,
Martha

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