Divorce and Social Security Benefits

Divorce can have a significant financial impact on your future. In addition to dividing property, debts, and assets — as well as determining things like alimony and child support — social security benefits should also be considered when spouses part ways. Importantly, social security benefits in divorce can be a critical issue for those who end a marriage later in life. If you were in a marriage that lasted ten years or more, you might be entitled to collect Social Security benefits based on your spouse’s previous employment record.

Understanding Social Security Benefits in Divorce

If you are divorced, you may be entitled to receive Social Security benefits based on your former spouse’s employment record, even if they have remarried. It is not necessary to notify your spouse that you will be claiming these benefits and there is no legal procedure in Missouri to divide them in court. In fact, federal law prohibits Social Security benefits from being distributed in a divorce settlement in any way other than the Social Security Administration would issue them. A provision in a divorce decree that specifies otherwise would be rendered invalid.

To qualify for Social Security benefits in divorce based on your former spouse’s record, specific criteria must be met, including the following:

• Your marriage must have lasted for a period of ten years or more
• You must be unmarried
• You must be 62 or older
• Your spouse must be entitled to Social Security retirement or disability benefits
• The benefits you would receive based on your own work are less than that which you would receive based on your spouse’s employment record

While Social Security benefits cannot be divided in the same way as other property and assets in divorce, they should still be factored into settlement negotiations. For instance, if there is a significant difference in income between spouses, there could be a considerable gap in the benefits each would receive. Even though a final judgment cannot divide Social Security benefits in divorce, spouses might agree to address any financial disparity by trading other property or assets.

Can You Receive Social Security Benefits Based on Both Spouses’ Records?

You might be able to collect both your own Social Security benefits in divorce and those based on your former spouse’s record. In the event you are eligible to receive Social Security benefits based on your own record, that amount would be issued first. If the amount of your former spouse’s payments is greater than yours, you would receive a combination of both benefits. In such cases, you would be entitled to the additional amount in order to receive up to half the value of your spouse’s benefit.

If you were born before January 2, 1954, you have the option to delay your own benefits and receive only the benefits based on your former spouse’s record. However, those who were born after this date must file for all spousal and retirement benefits at the same time.

When Can You Apply for Social Security Benefits After Divorce?

One of the questions most people have concerns when they can receive their spouse’s Social Security benefits in divorce. In order to receive Social Security benefits after divorce based on your spouse’s employment record (or your own), you must apply for them online, by phone, or by visiting a Social Security office. The earliest you can file for these benefits as a divorced spouse is three months before you turn 62. While this is considered “early retirement age,” the amount of benefits to which you would be entitled would be reduced if you apply as soon as you are eligible.

By waiting until you reach the full retirement age as specified by the Social Security Administration, you would be entitled to the full amount of benefits you are eligible to receive based on your spouse’s record. The full retirement age varies, depending on the year you were born. For individuals born between 1943 and 1954, the full retirement age is 66. The age increases every two months for each year between 1955 up until 1960. Specifically, if you were born in the year 1960 or later, the full retirement age is 67.

Your entitlement to your former spouse’s Social Security benefits is not affected if they choose to remarry. However, if you enter into a new marriage, you would not be able to claim their benefits — unless your subsequent marriage was annulled, ended by divorce, or your new spouse passed away before you qualified under their record.

Contact an Experienced Missouri Divorce Attorney

Understanding your entitlement to your spouse’s Social Security benefits in divorce can be confusing. If you are parting ways with your spouse, it’s essential to have a skillful divorce attorney by your side who can help you navigate the legal process and assist you with obtaining a fair outcome. Divorce and family law attorney Mark A. Wortman provides legal services to clients in the greater Kansas City, Missouri area who are considering divorce and works diligently to ensure positive results in their cases. To schedule a confidential consultation to learn how Mark can assist you, please contact him today online or by calling (816) 523-6100.