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Social Security and Divorce

In long-term marriages, it is common that at least one spouse starts to count on the other party’s Social Security for retirement. After all, you’re in what seems to be at the time a committed relationship that will last forever, right?

Sometimes though, as you may know all too well, marriage can end abruptly by either death or divorce. This can crumble the future and retirement you carefully planned with your spouse in the picture.

Federal law prohibits a judge from dividing or even considering a party’s Social Security benefits in the equitable division of assets of a divorce. However, a person can still be entitled to payments based on their former spouse’s Social Security benefits if they were married for 10 years or more and then divorced.

For couples that were married for at least 10 years, federal law lets the non-contributing former spouse collect on the contributing spouse’s total social security benefit if certain conditions are met.

Code of Federal Regulations 404.331 states that a divorced spouse is entitled to their former husband or wife’s disability or old-age benefits if:

  1. The couple was validly married for at least 10 years before their divorce became final
  2. The divorced spouse applies to receive the insured’s benefits with the Social Security Administration
  3. The petitioning spouse has not remarried
  4. The petitioning spouse is age 62 or older
  5. The petitioning spouse is not already entitled to disability or old-age benefits that are equal to or greater than the other spouse’s full benefit

What if my former spouse has not yet applied for his or her benefits? If a couple has been divorced for at least two years, the petitioning spouse can be entitled to these benefits before the insured spouse is even entitled to them if both spouses are 62 or older.

Will my former spouse’s benefits be affected by my sharing in them? Unlike private retirement plans, with Social Security the insured spouse will still receive his or her full benefits. Your share of a former spouse’s social security does not reduce their benefits or even those of their current spouse.

Will my former spouse be notified that I applied or am receiving a share of their benefits? The Social Security Administration should not notify them.

Am I still entitled to benefits if my former spouse dies? If one divorced spouse dies and the marriage lasted 10 years or more, the surviving divorced spouse can still receive their benefits as a widow/widower. In addition, if your former spouse dies then you are eligible to collect on their Social Security once you are at least 60 instead of 62, or 50 if you are disabled. If you have dependent children who are minors or disabled, you can be eligible before this.

What if I remarry? If the non-contributing spouse remarries, the right to these benefits terminates. However, this right can be restored if the second marriage ends (whether by death or divorce) and your first spouse’s benefit would be higher than the second’s.

How much of my former spouse’s benefit will I receive? In general, you are eligible for one-half of your former spouse’s retirement benefit if the statutory conditions listed above are met. If your former spouse is deceased, you are eligible for up to the full amount of his or her retirement benefit. However, if you take any benefit before you have reached your Full Retirement Age, the amount of benefits you receive will be reduced. Full Retirement Age has been slowly increasing to 67 depending on a person’s birth year in recent years. The earliest at which you can collect Social Security remains 62 (or 60 if your former spouse is deceased and you are claiming benefits as a survivor, but Full Retirement Age may be different for a surviving former spouse).

Birth Year is…Full Retirement Age
1937 or earlier65
193865 and 2 months
193965 and 4 months
1943-195466
195866 and 8 months
1960 or later67

How do I apply for benefits based on my former spouse’s Social Security? In order to receive benefits from your former spouse’s Social Security you must directly apply to receive them at your local Social Security office, at SSA.gov, or by calling 800-772-1213.

Social Security benefits can be a tricky calculation, with many different influential factors and rules. If you are dealing with a family law matter such as divorce, the calculation of Social Security benefits is just one of the complicated, potentially life-changing issues you must address head-on in order to be able to plan for your future.