Social Security Retirement Benefits and Divorce – What are YOU entitled to?

If you are in the midst of a divorce, Social Security retirement benefits may not be on your mind. This is especially true if you are relatively young and far from retirement. However, the potential affect of divorce on Social Security retirement benefits is an important consideration in negotiating the terms of a marital settlement agreement. The Bucks County divorce lawyers at Cooley & Handy often encounter questions about how divorce effects entitlement to Social Security retirement benefits in the future.

Social Security benefits are not considered part of your marital property to be divided in divorce. However, your divorce may impact both your right to claim benefits under your ex-spouse’s work history and the amount of benefits you or your ex-spouse are eligible to receive upon retirement. Therefore, it is important to consider this impact in financial planning for life after divorce.

Specifically, if you make less money than your ex-spouse, you may be able to collect benefits under his or her work history. This may allow you to receive a higher benefit than what you would be entitled to under your own work history. This increase may have a substantial effect on the lifestyle you are able to enjoy upon retirement.

Rights of a Divorced Spouse to an Ex-Spouse’s Social Security Retirement Benefits

If you are divorced, you can receive Social Security retirement benefits based on your ex-spouse’s work history if the following requirements are met:

  1. The marriage lasted 10 years or longer;
  2. You are currently unmarried;
  3. You are age 62 or older;
  4. Your ex-spouse is entitled to Social Security retirement benefits (i.e., he or she is 62 or older and has a long enough work history to receive benefits); AND
  5. The benefit you are entitled to receive based on your own work history is less than the benefit you would receive based on your ex’s work history. In other words, your benefit must not exceed half of your ex-spouse’s benefit.

Even if your ex-spouse is not retired, you may be able to collect under his or her work history if you have been divorced for over two years and all of the above requirements are met.

One very important consideration in divorce is Social Security’s 10-year rule (that your marriage must have lasted 10 years or more to collect under your spouse’s work history). If you are divorcing and the marriage has lasted close to ten years, it may be beneficial to intentionally delay the final divorce decree until the marriage has lasted ten years to qualify both spouse’s to potentially collect under the work history of the other.

Remarriage, Death, and Second Divorces

If you remarry, you will be unable to collect benefits on your ex-spouse’s work record UNLESS your later marriage ends by death, divorce or annulment. If your second marriage ends by death, divorce or annulment, you may be able to collect the larger of (1) the benefit based on your own work history, (2) the benefit based on your first spouse’s work record and (3) the benefit based on your second spouse’s work record, assuming that all of the above requirements are met.

It is important to note that if an ex-spouse is eligible to collect under your work history, it will have no effect on the amount of benefits you or your current spouse will receive.

Prior to agreeing to any divorce settlement, you should have a competent attorney analyze your financial situation, including your potential Social Security retirement benefits. The Bucks County divorce attorneys at Cooley & Handy can provide this advice.

© 4/11/11 Cooley & Handy