Social Security and Divorce

With every paycheck, a person pays into social security and they accrue the right to benefits upon retirement. For many, this is a critical resource to make ends meet later in life. When a married person reaches retirement age, social security will pay the higher of the individual’s own retirement benefit or up to one half of their spouse’s benefit. But what happens if the couple divorces? Does a spouse lose the retirement benefits they earn though their marriage? Older, divorced people are more likely to suffer financial difficulties than married or widowed people. Here is some information about the rights of a divorced person to obtain social security retirement benefits based on their ex-spouse’s earnings.

Is a divorced person entitled to a portion of their former’s spouse’s social security benefits? Maybe.

With benefits, it’s never as simple as “yes” or “no.” For an individual to receive any benefit based on the contributions to social security by their former spouse, they have to have been married 10 years, and they cannot be remarried. These rules are strictly enforced, so a divorce that is finalized after 9 years and 50 weeks of marriage will disqualify the individual from applying for this benefit. If an individual remarries, and the second spouse is deceased, they qualify to claim benefits from either the first spouse if that marriage lasted at least 10 years, or the second spouse as long as you were married at least 9 months before the spouse died.

Are there other qualifying factors? Of course.

To qualify for social security based on a former spouse’s earnings, there are three age thresholds. If the former spouse is still living, the individual cannot apply until they are 62 years old. If their former spouse is deceased, they can apply at age 60. If the ex is deceased and the individual is disabled, they can apply at age 50. If the ex doesn’t file for benefits before the couple is divorced, the applicant has to wait for 2 years from the date of divorce before they can apply for benefits.

If an individual qualifies, how much will they be entitled to receive? It depends.

The normal cap on the amount of benefits an individual can receive based on a former spouse is one half of the maximum to which the former spouse is entitled (although if the ex is not remarried, they are deceased and the individual is 62 or older, they may receive more). However, there are many rules for the amount of the benefit. As with all person’s applying, the age of the applicant can impact the amount of the benefit. If the amount of the benefit is based on the former spouse, then that person’s age also gets included in the calculation. In addition, if the applying individual has the right to a higher amount based on their own earnings, they will receive a benefit based on the higher amount. Finally, if there are minor or disabled children from the marriage living at home, the individual may apply for additional benefits for their support.

What happens if the former spouse remarries?

As long as the individual applying meets the criteria, they will be entitled to the benefits even if the former spouse remarries.

Does social security impact alimony? Yes and No.

Social security benefits can be treated as income in several instances. First, if an individual is continuing to work while seeking their ex’s social security benefits, alimony will be treated as income for purposes of discounting the benefit. Second, alimony will be taken into account by the Social Security Administration (SSA) when an individual is applying as disabled. Courts also will consider alimony payments for determining alimony received and paid. However, the SSA will not consider alimony when calculating the total amount of the benefit.

Because of the many, and often confusing rules for social security benefits, a person either planning to divorce or remarry following a divorce, should consider consulting with an attorney with knowledge on the subject to make sure they are clear on the implications and timing factors that can impact the right to and amount of benefits. Do you have a social security and divorce question? Contact ReeseLaw for a consultation from post divorce attorney.

DISCLAIMER. The material contained on this Website is not offered, nor should it be construed, as legal advice. The material on our Website has been prepared and published for informational purposes only. You should not act or rely upon information contained in these materials without specifically seeking professional legal advice.


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