How Does Divorce Impact Your Spousal Social Security?

In a marriage with children, many women stay home to raise the children, limiting the income they earn and thus their Social Security benefits. When a couple divorces, the woman who has given up earnings to raise a family is often afraid that she will be left without enough Social Security to support herself. Fortunately, the Social Security Administration (SSA) does allow Social Security Divorced Spouse benefits. 

Under most circumstances, the SSA’s rules in order to be eligible for divorce benefits are as follows:

1.   Be at least 62 years old and not currently married
2.   Be divorced from a person who receives Social Security retirement or disability benefits
3.   Have been married to that person for at least 10 years before the date the divorce became final
4.   Not be entitled to equal or higher retirement or disability benefits 

You may collect on your ex-husband’s Social Security even if he is remarried. In fact, if you have been divorced for at least two consecutive years, you can collect on your ex-husband’s Social Security even if your ex has not yet begun to collect. This differs from the rules for existing spouses, who cannot begin to collect on a spouse’s benefits until the spouse begins to collect. 

Of course, these rules also work in reverse; an ex-husband could collect on an ex-wife’s Social Security if hers is higher than his and all other conditions are met. There are also a few situations in which some of these rules do not apply. 

Rule change benefiting older divorcees

Rule 4 is treated differently depending on your age. If you are born on or after Jan. 2, 1954, the rule applies: when you apply for Social Security, you are applying for whatever benefits are available and you will receive the higher benefit, whether that is yours or your ex-spouse’s. You may not receive both and you may not switch between them. 

However, ex-spouses born on or before January 2, 1954, are allowed to file for restricted spousal benefits at full retirement age and suspend their own benefits until a later point, allowing it to continue to grow by another 8% until age 70 when it stops increasing in value. After this point, the ex-spouse can switch to this higher benefit.

Survivor benefits

Survivor benefits also have some exceptions to the rules above. If your ex dies, you may file for survivor benefits as young as age 60 (age 50 if you are handicapped) and switch to your own benefits at the age of 62, if you want. You can also do the reverse: file for your own benefits at age 62, then switch to survivor benefits when they reach their maximum value around age 66 or 67, assuming it is higher than your benefits. 

Additionally, if you are caring for any natural or legally adopted children of your ex-spouse who are under the age of 16 (or who are disabled and entitled to benefits), you may apply for divorce benefits regardless of your age, and you do not have to have been married for at least 10 years. However, these benefits to you run out when the child reaches the age of 16 or is no longer disabled. In this situation, you would be able to reapply later, if the other conditions are met. 

Caveats

These are federal government rules and cannot be changed by a divorce agreement. The IRS does not care about any Social Security clauses in your divorce agreement if they differ from these rules. 

The Social Security benefits that you receive from your ex-spouse will not decrease the benefits to your ex’s current spouse if remarried. But remember! If you remarry, you lose the right to file on your ex-spouse’s Social Security.