Although a divorce court can and will divide retirement benefits such as 401(k) accounts, pensions and IRAs, it cannot divide Social Security benefits. And for many couples, Social Security benefits will make up a considerable portion of their retirement income.
In a long-term marriage, one spouse (often the wife) may have stayed home to raise the couple’s children while the other spouse worked outside the home, paying into the Social Security plan for future benefits. Just as the court (and the couple, generally) presumes that retirement savings will later benefit both spouses upon retirement of the working spouse, the Social Security system has built-in benefits for divorced spouses who meet certain conditions.
Eligibility for Social Security Retirement Benefits of Ex-Spouse
A divorced spouse can receive Social Security benefits either on her own contributions to the Social Security system or as a spouse of a contributor. The benefits as a spouse of a contributor (primary beneficiary) are called “derivative benefits”.
If you are divorced, but your marriage lasted 10 years or longer, you can receive Social Security benefits on your ex-spouse’s record (even if he or she has remarried). In order to collect, though, you must be (1) unmarried, (2) age 62 or older, (3) The benefit you are entitled to receive based on your own work is less than the benefit you would receive based on your ex-spouse’s work, and (4) Your ex-spouse is entitled to Social Security retirement or disability benefits (but does not have to be actually receiving them).
The amount paid to you, the dependent claimant spouse, is a percentage of the benefit due your ex-spouse, the primary beneficiary.
If your ex has not applied for benefits but can qualify and is age 62 or older, you must have been divorced for at least two years in order to collect benefits. If your ex-spouse was actually receiving benefits before the divorce, there is no two-year waiting period.
If you, the dependent claimant spouse, remarry, you will not be eligible for benefits unless and until the subsequent marriage terminates by divorce or death. If the remarriage terminates, you become eligible again for derivative benefits from the first former spouse.
If you continue to work while receiving derivative benefits, Social Security’s retirement benefit earnings limit applies. This will lower your monthly benefit while you are still earning income elsewhere but may increase your benefits after you stop working.
Eligibility for Social Security Widow/Widower Benefits for Ex-Spouse
If you are the divorced spouse of a worker who dies, you could get benefits just the same as a married widow or widower, provided that your marriage lasted 10 years or more. In general, you cannot receive survivor benefits if you remarry before the age of 60 unless the latter marriage ends, whether by death, divorce, or annulment. If you remarry after age 60 (50 if disabled), you can still collect benefits on your former spouse’s record. When you reach age 62 or older, you may take retirement benefits on the record of your new spouse if those benefits are higher than the survivor benefits you’ve been collecting previously. Your remarriage would have no effect on any benefits being paid to your children.
There is no limitation on the number of divorced surviving spouses who can receive benefits on the deceased worker’s earnings record, as long as they each meet the qualifying conditions. A former spouse, however, does not have to meet the length-of-marriage rule if she or he is caring for a child of the primary beneficiary who is under 16.
Effect of Claim on Ex-Spouse’s Own Benefits
The amount of benefits you get has no effect on the amount of benefits your ex-spouse or their current spouse may receive.