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.
56 Comments
An Ex-Spouse’s ability to receive benefits regardless of the fact that the Ex-Spouse’s new wife will also receive benefits? That seems like a money pit and a very redundant system. What a waste of the SS funds, unless the Ex-spouse receiving the funds is disabled, they should not be able to receive SS funds regardless of whether or not they remarried. Especially if they are able to receive benefits based on their own work/SS account. What a waste of SS funds…. double entry funds retrieval system for sure!!!
In answer to your question, the NEW wife does NOT receive anything!! Or, the NEW husband does NOT receive anything!
If you were married more than 10 years… YOU get the benefits…NOT the second or third spouse!!! This is a Ma. State Law!!!!!!
As long as the spouse, first, second or third were married for ten years they are eligible to receive their spouse’s or ex-spouse’s benefits.
it is not a waste of funds, that first marriage is the one that counts like it or not. Especially if that spouse stayed home to raise children they are entitled to draw SS from a spouse who worked.
I was married 11 years to a man that in order to keep the house to raise my children he asked me to giveup any claim on his pension and social security benefits…The house burned down…Can I claim social security benefits,for the 11 years I was married…
Hi Deborah! I don’t know if anyone responded to you yet, but I had the same situation with my ex wanting me to sign off on his pensions, which I did just to get out of a bad situation. Some men are just something else, right? In my divorce papers, I didn’t see anything about signing off on social security benefits, but I worried about this too. From what I was told, social security benefits come under federal law, so you can’t sign off on that — just his pensions. Besides, it wouldn’t come out of his pocket anyway like his pensions would. My ex always complained about having to pay any child support, and my daughter was sickly which made it difficult for me to work full-time. When he became disabled when my daughter was about 12, he even pitched a fit that I was getting half of his disability as child support for her. So, the government was basically paying his child support for him, and he still complained even though he came out ahead because he didn’t have to pay it anymore. Unbelievable!!! You may want to double check into what I said just to be sure that I’m accurate in what I’m saying. Call the Social Security Office directly, if you haven’t already. I am so sorry to hear about your house and hope that things are going okay for you. Take care!
The ex spouse of a deceased worker, married to him for more that ten years, I just turned 60 but I remarried years ago. If I divorce my current husband I should be entitled to benefits from my deceased ex. Even if I then remarry him, it should not effect my benefit. Am I reading this right?
Yes you can collect on your EX if you divorce the husband you are with now…BUT if you remarry that second husband…then the faucet will turn off again ! Who are you kidding?
i was married 24 years to a man 19 years OLDER, he is now 64 and im 45, we have been divorced 2 1/2 years when can i recieve ss benifits in phoenix,az?
My brother died in December. He was never married, but did have a long-term girlfriend with whom he has a child. My brother DID sign the birth certificate, however we have always been concerned that the kid is not his. I know that this kid will probably always be entitled to a soc. security check, but can we request a paternity test for the purposes of the life insurance policy?
I’m 34 and receive ssdi. My 2 young kids get benefits, which go to my ex wife (she had an affair, got pregnant, and divorced me for him) since the kids spend more time with her (though we have joint custody). She sees this as her $, and refuses to account for how it’s spent. Is there anything I can do to ensure this money goes to my kids?
normally, in that case a judge and/or lawyer would make sure you get them as dependants on your taxes and not her. cuz its actually coming from you. and that money that goes to the kids goes against you every year not the ex or the kids . trust me i know cuz they told me i was unelligable for 2 years of it and they made me pay back ss from my ss and what the kids got was added to me even though the cash went to their mom, i never married her
I have been married for 21 years..husband is 71 yrs old. living with another woman. He receives SSI monthly (not much). When I do file in 3/4 years will he be able to get mine?. I have not claimed part of his as of this moment….basically he is having his cake and eating…….
My husband & I have been married for almost 5 yrs. We do not have children together. We are both 59 yrs old on state welfare. We have been separated for 1 mo. I receive disability & my husband has applied for disability. This is an uncontested divorce. Will the amount of his benefits increase when we divorce? And how will the divorce affect our food stamps?
I will be divorcing my husband of nine years.will he still be able to get my social security? will i still get the amount?
14 yrs. Aug.2 and divorcing. I have heard of Derivative Benefits, spouse is 59 receiving Disability as he is blind and disabled vet I on the other hand will be 49 in Nov. and have some health issues with my neck(degeneration of the plates,disks and joints flat as a pancake and nerve to right arm caught in between it all) and surgery maybe in sight as it has been suggested to me by drs. What I would like to know since he is getting a monthly check when I go to answer the petition can I claim or ask the judge for the derivative benefits? Need answer ASAP as I only have 16 days now left to answer it.
I was married to my husband for 9 years then we divorced and he has remarried. My questions is, since we lived together as husband and wife, joint checking accounts etc. and if I could get proof of this and affidavits from both sides of the family as well, could I still claim half of his retirement / social security since I did not remarry?
UPDATE: My divorce was “signed off” by the Judge today and the derivative benefits were automatically included in the Divorce. As I stated above ex spouse is collecting SSDI at age 59 now and I will be 49 in Nov. and since I have health issues I need to know how,who or what do I do to file the paperwork for the derivative benefits right now? Anyone know?
I have been on Disability Social Security since 1997 was married for 29 yrs and got a divorce 6 years ago. My EX husband became disable this year and is now getting his SS Disability benefits. I am 55 and he is 57 yrs old. Can I apply now to recieve benefits off of his SSD benefits?
I stayed at home raised the kids and when he was out of work I went to work and am drawing benefits off of my work history. I know I will recieve more benefits off his work history. Please advise if I am eligable to draw from his benefits at this time or if I have to wait untill I am 62yrs. old. Thank You
I’m doing the divorce paperwork myself…do I need to include a clause about my ability to receive my ex-husband’s SS benefits in the divorce, or it it automatic?
Lisa,
I was divorced almost 3 yrs ago after 22 yrs of marriage. No you do not have to include anything about SS benefits in the divorce, it is automatic.
My husband passed away when my son was only 7 months old. He had a son by another marriage also. We all recieved his death benifit. The other son turned 18 this past July, I thought my sons benefits would have gone back up, but they have not. I remarried 4 years ago, so mine where terminated. I am about to get divorced due to new husband and child do not get along. Is there anyway I would beable to reapply for my deceased husbands widows caretaker benifits again?
Hi,
I was married for ten years then we divorced. He died when our daughter was 16. She has many disabilities. She is now 23. She collects ss. I was told I should be receiving survivors benefits?i am unsure of what this is or how I go about to see if I qualify? Any suggestion.
Thanks
I was married to my husband almost 2 years. Six weeks after we where married he was dx with colon cancer at the age of 36. He survived 20 months. When he passed away we had a 7 month old son at the time and he had another son from previous marriage. I was getting benefits for my son and alittle myself but I was working to help support me and my sog. The other ex wife was getting it for her son and really not working so she could collect too. Her son just turned 18 this past July. He no longer get a benefit. I thought my son’s would go up, but have heard nothing for social security. I am trying to get my ducks in a row. I remarried alittle over 4 years ago, and I am in a verbal/emotional abusive relationship and I am trying to figure how I am going to beable to support me and my son. Even though I remarried, if I get divorced would I beable to be eligible to recieve benifits from my first husband deceased while taking care of our son? Can any body help me with this or tell me what I need to do. Thank you in advance.
My ex ( divorced) wife died in Dec. 2011.
She was receiving benefits based on my retired Social Security payments.
Will my SS benefit (dollars) increase since my ex is no longer receiving a SS payment from my record?
I’m going to have a divorce with my husband. We where together for 13 years and we have two kids. One is 13 and the younger one is 7. This is his second marriage and his last marriage lasted over 10 years. They also had two children, one whom is now 31 and the other is 29. His ex wife was married before age 60. Who will reciewve the social security benefit when we divorce his ex wife or me? Also If my husband gets married for a 3rd time who will get the the social security benefit then?
When my x husband and I divorced he told the court he did not have any retirement where he worked, but I found out later he did..along with stock options with the company. Can I still go back and file something to become eligible to recieve these benefits at a later date. We were married for about 9 yrs. in Kentucky
I was married 26 years. I have tried to make it on my own, but I have no income due to taking care of sick relatives, and bad credit that my x was Court ordered to pay but did not, so leaving me with bad credit, which is a law in my state to “not hire”. My x gets SSI 100% and 100% VA disability pension (that I fought for to get for him while he was under a ‘non-workability’ claim with the VA. He claimed PTSD, I fought on those grounds and won. However, it was not until the divorce was final that he received the permanent Pension. I now have no income, no home, have to live with others, and lean on family for help. He has married two times since the divorce, and now has a new home, two new cars, and never even has to pay a penny for an aspirin. VA pays it all. I am having health issues, therefore fighting the VA for a portion of his pension. So far denied. I would like to know if any other woman or man has had this battle with the VA, and any good advice would be greatly appreciated. He is pretty much healthy and through our senator, I found out he never even was in combat. It was all lies. But my tenacity won his claims, and I have been thrown away as nothing. Any advice at this point would be a God-send. thank you!
I am a Georgia resident. My husband and I are currently separated (have been for 2 years) I recently told him to go ahead and file for the divorce, since I cannot afford it, nor am I receiving any spousal support. I am 63 and he is 59. Plus, there is a 38-year old involved with him right now – laying in wait like a rabid dog. I know that even though he was a 16-year employee of General Motors years ago, and eligible for pension/retirement benefits at retirement age, will I be entitled to any of those monies? Should it be specifiied in the divorce decree even though I told him to go ahead and file?
I’ve receving SS on my own income, my husband turned 66 and file for his SS retirement, he claimed he was single, I had file for divorce but is not final, we still married so I refiled under his SS which will be more than what I’m getting right now,we’ve ben married for almost 8 years, SS told me as long as we still married I can get benefits under his SS, but I will go back to my original amount after the final divorce, my question is what’s the penalty for perjury since he claimed been single just to be mean and to hurt me..
I was 62 when I started collecting social security disability. I was divorced two years and started collecting on my ex spouses social security at about age 63 and he is still working and was 62 when I started his. My question is, if I am now 64 and get remarried, will I loose his benefits? If I remarry can I collect my new husbands benefits instead and he will be 66 in 2012 full retirement age.
I had a stay way order from my husband. During the separation before I began divorce proceedings he recieved large pension payment. Am I entitled to receive a percentage of that money?
I have been separated from my husband for eight years. We have been married eighteen years. In the time we were separated he became disabled and is on disability . I’m sixty, am I eligible to draw his ss too even though we don’t live together. And am I entitled to any of his settlement he drew from his accident on the job of 70,000 dollars?The reason I ask is , I’m not a gold digger , he want give me a divorce . When my ex died he left my son money . My son gave me some money while I was married to my current husband. I bought land . I payed it off five years after. I put the land up as collateral on a mobile home. I got cancer couldn’t afford it and lost the land . All I want to do is get a divorce and draw my widows pension off my first husband. HELP!!
i have been married for 30 years i have been seperated from my husband for 5 years am i entitled to his social security benefits after he passes
My lawyer seems to dropped his hands….he even asked me if I wanted to changed lawyer, because I questioned his ethics. The first conference, he met with my husband and his lawyer without me, even though I was there. Also am I entitled to SS being married for 11 yrs and a stayed home mom with 2 boys? Should I changed my lawyer?
Please help! I have been divorced for 17 years. In my divorce decree, it states that my ex receives a redit dollar fro dollar for any SSI I would receive from him since he has given me support every month since divorce and has to for the rest of my life. I have reached 62 and now he is retired. I have gotten part of my support from his pension and he was sending the difference, however, now he syas that he is not even giving me the difference since I will be getting 271.00 because I did not work due to sickness and anxiety while married and now. Is this legal if written in divorce? It does not come from him but the government. He is a scammer by the way and I was not aware this was put in decree.
Thanks for any help
Mary
My wife and I separated in Sept 2000 and finally divorced this past May 15th. I agreed to pay her one half of our combined income (my military retirment, my SSB and her SSB). This is what I had been paying her since separating and my lawyer advised that that was what the court would decide if left up to the judge. Texas has some legal precident in this regard so I went along with it. Now I see that there is a possibility that she could go to the SSA and get her SSB raised to one half of what I receive, which is more than her SSB is right now. She is 67 and I am 73. If this is true and she does do that, how would I know? She would be getting $300+ a month more than the decree stipulates…which seems hardly fair. What should I do???
Thanks in advanc…JB
If a man an women got married, and been married for over ten years, but the wife abandoned the marriage within the first year of the marriage, then the man marries someone else after about 13 years of being married to his first wife then he dies, Is the first wife entitled to any of the husbands death benefits?
Going thru a divorce have to pay spousal maintenance, have a disabled child,will the spousal maintenance stop when I retire and she will draw social security as care taker for child?
i was married for 10 years im on disability and am wondering if i can collect benefits at age 50 from his soc. sec. since im disabled or if i remarry this same man is it considered a new marriage or is there a clause for this? need help dont know where to turn….. thanks for any help offered.
I am divorced and have one minor child. Our divorce was in Colorado. My ex-spouse just started receiving monthly benefits thru social security disability. He also received a big “back pay” check. Our child is eligible for disability benefits because of my exes claim. My ex states our child will also get a “back pay” check and also a monthly check until the age of 18. My ex pays monthly child support. My question is: Now that our child will be getting social security benefits, will the child support benefit be taken out from the minor’s money? What about the “back pay” check the minor will be getting. Is my ex entitled to receiving that check? It seems like the child support obligation would be garnished from my exes own monthly benefit check, not from the minors. I would appreciate some insight about the Colorado law. Thanks!
me my husband are seprated he reicieves his ssi disability i had surgery and had to stop working so that left me with no income i have applied for my disabilty due to the fact that iam up under doctor care can i recieve any type of his beefits
I was in Australia when my divorce became final in MI and when I received the court papers I saw my ex lied to me (pathological liar). The judge gave him everything EVERYTHING and gave him sole physical custody of the kids and took all my rights to his pension away. He told me he was going give me joint physical custody and 1/2 his pension and 1/2 the marital
assets. I was marred to the man for over 20 yrs. How can he get away with this? I thought the law said after 20 yrs of marriage it had to legally be spilt regardless. Can I bring this back to court? The judge was wrong to do this to me.
If I have been married for 32 years and am now getting a divorce, will my disability go up, since I will not have his income? He is still working and I am only 49, almost fifty years old and I am on disabilty. I am scared and do not know how I will live on my income! I have numerous health problems and my medication alone is going to be around a 1/4 to 1/3 of my income.
I was married for 21 years, divorced for 5 now. Ex husband recieves soc sec benefits at age 66 now, will be 67 in Feb. We have a 7 yr old together who also recieves soc sec, should this be in an account with both parents listed on it for her future? How can I find out the amount he recieves for our 7 year old per month? Thanks for your time and help.
Me and my husband have been separated since Nov 2008. We have a child who is now 6 yrs old and under my care. My husband is receiving social security disability benefits. The problem is he is not giving the whole benefit amount to our child. He usually gives only half every month of what our child is suppose to get. We are not yet divorce but I’m planning to file the divorce papers this year 2013. We are only married for 5 years. My question is can my son directly get his child benefits? like can it be automatically be deposited to his bank account so that he can get the full amount? What do you think I should do?
i just got married to my husband one month ago and he died last january 10,do i have the right to claim the social security?
- I am kasha i lives in uk and i was in a serious relationship with my ex guy for three good years.. One day we were in a dinner party, we had a little misunderstanding which lead to a Quarrel and he stood up and left me at the dinner party. i try to call him but he was not picking my calls so after than i contacted my brother and told him about it,my brother so much love me that he had to see him on my behalf,he told my brother that it is over between us.. Then i contacted a friend of mine that had this similar experience and she directed me to one of the spiritual diviner (maduraitemple@yahoo.com).at first i thought it was not going to be possible and i contacted him i was ask to come up with a little requirement,so i did what i was ask to do, after 3 days i was in my office when my ex guy called me and was asking me to forgive him and come back to him. i was very surprise it was like a dream to me,so ever since we have been happily married with one kid my lovely baby(Ceslav)…i wish you the best of luck…
My mother was married 2 times just under 10 years and she does not qualify for social security has zero income and is 75 years old about to loose her home and I DONT know what to do HELP…
Gina
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I wasmarried to my ex spouse for 10 years, Can I get a benefit from his ss record even if I will not live in USA ? I am a us citizen but like to retired in my country. I will appreciate an idea Thanks
I am 48 years old, my late husband passed away in 2008, but we divorced in 1998 after having been legally married in 1990 with 4 children. Our youngest daughter was 20 when he passed. We married in the state of KY, but had been living together for 6 years in the state of OH prior to that. Back then if I’m not mistaken, we were already considered ‘common law’ married. My question is, can I draw survivors benefits?
I married in 1995 and seperated 3 months later on which we had a son in 1990. We never divorced and my son is now over 18 on his own. I went on ssdi in 2011 unable to work due to heart disease. I want to divorce and my husband never worked but odds and ends jobs and welfare. Our son is still owed back child support for him, ex is only ordered to pay $10 a month becUse as usual he does not work! Can he take from my ssdi? Will ssdi increase my income? P.s married in jersey but relocated years back out of state.
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