Social Security Benefits and Divorce

Financial matters are a significant part of divorce. Not only does this include dividing property, allocating debts, and determining alimony — but Social Security benefits should also be addressed. This can be a crucial issue when it comes to financial planning after a marriage ends, particularly for those who divorce later in life. If you satisfy certain criteria, you might be entitled to collect Social Security benefits after divorce based on your former spouse’s employment record.

How Are Social Security Benefits Impacted by Divorce?

If your former spouse is receiving Social Security, you might qualify to collect benefits on their record. A divorced spouse may be entitled to a monthly payment of up to one-half the amount of the other’s retirement or disability benefits. Importantly, even if you collect on your spouse’s record, the amount of benefits they are eligible to receive would not be reduced.

It is not necessary to communicate with your ex-spouse regarding your entitlement to Social Security benefits. There is no procedure for distributing them along with the other assets in your divorce — under federal law, these benefits may not be divided like other property in a matrimonial action. In addition, the Social Security Administration (SSA) will not notify your ex-spouse that you have filed for benefits.

Although Social Security benefits cannot be divided during divorce proceedings by order to the SSA, they are essential to consider before entering into a divorce settlement agreement. The amount of benefits you may be eligible to receive can have an impact on your post-divorce financial planning. When there is a disparity of income between spouses, the gap between the benefits each spouse might receive could be substantial. Some spouses might wish to offset this by agreeing to trade other assets in order to prevent an imbalance. Some couples agree to equalize social security benefits when they are in payout, but that is an agreement between the spouses that would be memorialized in the decree rather than an Order directing the SSA to make the division.

Who Can Receive Social Security Benefits After Divorce?

Your ex-spouse does not need to currently be collecting their Social Security retirement benefits in order for you to collect the benefits to which you would be entitled based on their record. However, if they aren’t collecting their benefits, your divorce must have been finalized at least two years before you make your claim. The two-year rule is not applicable if your ex-spouse is already receiving their benefits.

You may be eligible to receive Social Security benefits after divorce based on your spouse’s record if the following criteria are met:

• The duration of the marriage was 10 years or more
• You have not remarried
• You are age 62 or older
• Your former spouse is eligible to receive Social Security retirement or disability benefits
• The amount of Social Security benefits to which you would be entitled under your own record is less than you would receive under your former spouse’s

If you are eligible for Social Security retirement benefits on your own record, you would receive that amount first. Should your ex-spouse’s benefits be greater, you would receive the additional amount based on their record to equal the higher amount to receive half the value of their payment. Individuals who were born in 1953 or before have the option to receive only an ex-spouse’s benefits and delay claiming their own retirement benefits until a later time. But if you were born after January 2, 1954, the option is not available — in these cases, by filing for one benefit, you are filing for all retirement and spousal benefits. If you are close to the 10-year mark and in the process of a divorce, it can be beneficial to consider the timing of the divorce to maximize your benefit, as long as the benefit outweighs the wait, which can be financial or emotional reasons.

When Should You Apply for Divorced Spouse Social Security Benefits?

Social Security benefits after divorce are not automatically granted. You must apply to receive them. The earliest you can apply for divorced-spouse benefits is three months prior to your 62nd birthday. However, the timing you apply for benefits should be carefully considered. Sixty-two is considered early retirement age — your benefits would be permanently reduced if you make a claim for them as soon as you become eligible.

To receive the full 50% of your ex-spouse’s benefits, you must wait until you have reached full retirement age to apply. Full retirement age is determined based on the year you were born. For those born between 1943 and 1954, the full retirement age is 66. It increases incrementally each year for those born from 1955 to 1960. Sixty-seven is the full retirement age for anyone born 1960 or later.

Does Remarriage Affect Social Security Benefits?

In the event your former spouse remarries, your entitlement to their Social Security benefits does not change. Your ex-spouse’s remarriage would not reduce your benefits. But if you are the ex-spouse who remarries after divorce, you would not be able to claim benefits based on your former spouse’s record unless your subsequent marriage was annulled or ended by divorce or death before qualifying to receive them under your new spouse.

Contact a Knowledgeable Minnesota Divorce Attorney

If you have questions about Social Security and divorce, a skillful divorce and family law attorney can assist you. Attorney Louise Livesay has been dedicated to helping clients in the Twin Cities area navigate complex divorce matters peacefully and respectfully using the collaborative process for over two decades. We welcome you to contact us online for a consultation or by calling 651-294-2338.