Fields and Dennis LLP

By Jonathan Fields, Esq.

What is the basic rule regarding Social Security and divorce?

If you are divorced, (1) your ex-spouse is alive at the time you apply for benefits, and (2) your marriage lasted 10 years or longer, you can receive benefits on your ex-spouse’s record (even if they have remarried) if:

• You are unmarried;
• You are age 62 or older;
• Your ex-spouse is entitled to Social Security retirement or disability benefits; and
• 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.

You don’t need to file any special papers along with your divorce for this to apply.  This right is a function of federal law.

What is your benefit?

• Your benefit as a divorced spouse is equal to one-half of your ex-spouse’s full retirement amount (or disability benefit) if you start receiving benefits at your full retirement age.

What is full retirement age for purposes of Social Security?

Full retirement age is explained here in a chart.  Generally, for people born in 1960, it is 67 years of age.  For those between 1943-1954, it is 66 years of age.  For those born between 1954-1959, in each of those birth years, the retirement age is somewhere between 66 and 67 years of age.

Do you have to wait for my spouse to start collecting benefits before you can?

No.  So long as your ex-spouse is 62 years old, eligible for benefits and you meet all the other qualifications, you can collect benefits on your spouse’s record.  It doesn’t matter if your spouse has actually applied for benefits.  However, if your ex-spouse has not applied for benefits, but can qualify for them, you can only receive benefits on their record if you have been divorced for at least two years.

What if you remarry?

If you remarry, you generally cannot collect benefits on your former spouse’s record unless your later marriage ends (whether by death, divorce, or annulment).

What if your ex-spouse gets remarried and divorced — do you have to file benefits before him/her in order to receive them?

No.  If you meet the qualifications, you get the benefit.  It doesn’t matter how many others can also claim the benefit.

What if your ex-spouse is deceased at the time I apply for Social Security Benefits?

In that case, all the rules above apply except:

• You only have to be 60 to apply, or 50 if you’re disabled
• If you remarry before age 60 (or 50 if you’re disabled), you can’t receive such a benefit. But if you remarry after 60 (50 if disabled), you can

Can you get benefits if your ex-spouse dies and there are young children involved?