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nanakimmy

Social Security and Bankruptcy

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Recently, my husband and I saw an attorney who told us that if we wish to claim a common law marriage that we have to make some changes to tax filings, etc in order to file a joint bankruptcy petition. However, social security once told us that if he was married they would stop his benefits. At the time we were living in a state that didn't recognize common law, but now we are in a state that does.

Before we start making the changes, though, we are trying to find out if social security will then stop the benefits once we claim common law marriage, or if they have a distinct difference between the two in their realm. I know at a state level common law is considered "legal" marriage but what we are worried about is what the rules of social security are.

 

Thanks in advance.

 

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He gets social security disability. It comes from the wages of his late father, he's gotten it since he was a juvenile. I asked them if we filed it under an adult case if that would make a difference and they said 'no.'

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A common law marriage, as defined by the laws of the state of residence, is a legal marriage.  But like a traditional marriage, you have to take steps to legitimize it according to the laws of the state.  Effective Jan 1 2011, South Carolina changed the law recognizing the formation of common law marriage.

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3 hours ago, nanakimmy said:

But how does social security define marriage? Do they include common law in that aspect or is it strictly a "legalized" marriage?

 

The federal government does not now define marriage at all ever since the Defense of Marriage Act was effectively killed by the Supreme Court. Rather, it is state law that defines what constitutes a marriage. If the state recognizes you as married, then so does the federal government. That means that for federal tax purposes you are married, and Social Security will consider you married, too. That may mean that your partner would lose his disability benefits. There is typically no great advantage to filing a joint bankruptcy petition as a married couple rather than each of you filing for bankruptcy separately other than perhaps a cost savings in the bankruptcy proceeding itself. Don't get married just to facilitate the bankruptcy.  

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Hi @nanakimmy

 

Welcome to the community and thanks for posting! In order to be absolutely sure that there are no unintended Social Security-related consequences to establishing a common-law marriage and/or filing jointly for bankruptcy, you may want to confer with an experienced Social Security lawyer. Many offer free consultations, and you can use our Lawyer Directory to locate an attorney in your area.

 

Best of luck!

The FindLaw.com Team

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