Summary: Learn when you can claim Social Security benefits on an ex-spouse’s record, why the 10-year marriage rule matters in divorce, and what Utah courts can and cannot do with Social Security.
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No, You Are Not Taking Your Ex-Spouse’s Money
A divorced-spouse Social Security benefit is not a share of your ex-spouse’s monthly Social Security check. It is a separate federal benefit calculated from your former spouse’s earnings record.
If you qualify, your claim does not reduce what your ex-spouse receives. It does not reduce what a current spouse receives, either. You do not need your ex-spouse’s permission, and your Utah divorce decree does not need to award the benefit to you.
The eligibility rules are federal and rigid. A Utah divorce judge cannot waive them, and the parties cannot create eligibility by agreement.
One rule deserves particular attention before the divorce becomes final.
The 10-Year Rule Can Matter Before Your Divorce Is Final
To qualify for divorced-spouse benefits on a living former spouse’s record, you must have been married for at least 10 years immediately before the divorce became final.
Social Security considers the 10-year requirement satisfied if the divorce becomes final on or after the tenth anniversary of the marriage.
That can make the date of the divorce decree surprisingly important.
Suppose your tenth wedding anniversary is June 15. If the divorce becomes final June 10, you do not satisfy the 10-year marriage requirement. If it becomes final June 15, you do.
That difference can affect Social Security benefits years later.
And here is the part divorcing spouses sometimes misunderstand: waiting long enough to satisfy the 10-year requirement does not reduce the other spouse’s Social Security benefit.
If your marriage is approaching its tenth anniversary, do not treat the date the decree is entered as a meaningless administrative detail. Find out what the Social Security consequences will be before the divorce becomes final.
Who Qualifies for Divorced-Spouse Benefits?
To claim on a living ex-spouse’s Social Security record:
- your marriage must satisfy the 10-year rule;
- you must be at least 62 years old;
- you must be unmarried; and
- the benefit available on your own Social Security record must be less than the divorced-spouse benefit available to you.
Your former spouse must also be entitled to Social Security retirement or disability benefits.
There is an important exception. If your ex-spouse is at least 62 and eligible for Social Security but has not applied, you can still claim on that ex-spouse’s record after you have been divorced for at least two continuous years.
Your ex-spouse cannot defeat your claim simply by refusing to file for Social Security.
How Much Can You Receive?
The maximum divorced-spouse benefit is 50% of your ex-spouse’s primary insurance amount. In plain English, that means the benefit your ex-spouse would receive at his or her full retirement age.
It does not necessarily mean half of the check your ex-spouse is actually receiving.
Suppose your former spouse’s full-retirement-age benefit is $3,000 per month. The maximum divorced-spouse benefit is $1,500 per month if you claim at your full retirement age.
If your own Social Security retirement benefit is $1,100, you do not receive $1,100 plus another $1,500. Social Security pays your own benefit first and then adds enough based on your former spouse’s record to bring the total to the higher available amount.
So in this example, the total is $1,500—not $2,600.
There is another rule that matters because older Social Security advice can now be misleading. If you were born January 2, 1954 or later and qualify for both your own retirement benefit and a divorced-spouse benefit, you cannot choose to collect only the divorced-spouse benefit while letting your own retirement benefit grow until age 70. Filing for one is treated as filing for both. Social Security determines what is payable under your own record and adds any divorced-spouse amount necessary to bring you to the higher benefit.
Claiming before your full retirement age permanently reduces the divorced-spouse benefit. Waiting beyond full retirement age does not increase a divorced-spouse benefit beyond its maximum. Delayed retirement credits earned by your ex-spouse do not increase the 50% maximum available to you.
If you work while collecting benefits before reaching full retirement age, earnings above Social Security’s annual limit can temporarily reduce the amount Social Security pays.
What If You Remarry?
If you remarry, you cannot receive divorced-spouse benefits on a living former spouse’s record while the new marriage continues.
If that later marriage ends by divorce, annulment, or death, you can again qualify on the former spouse’s record if you meet the other eligibility requirements.
Different rules apply when the former spouse whose record you are claiming on has died.
If Your Ex-Spouse Dies, Different Rules Apply
A surviving divorced spouse can qualify for survivor benefits on a deceased former spouse’s record. These are different from ordinary divorced-spouse benefits.
A surviving divorced spouse can claim survivor benefits beginning at age 60, or at age 50 if disabled and the disability requirements are met. Survivor benefits can reach 100% of the deceased former spouse’s benefit, depending on the survivor’s age when benefits begin.
There is also a separate rule for a surviving divorced parent who is caring for the deceased former spouse’s qualifying child who is under age 16 or disabled and entitled to benefits on the deceased parent’s Social Security record. In that circumstance, the surviving divorced parent can qualify regardless of age.
The remarriage rules are different, too. Remarriage after age 60 does not bar survivor benefits on the deceased former spouse’s record. Different age rules apply to disabled survivors.
Deemed filing also does not work the same way with survivor benefits. A surviving divorced spouse who qualifies for both survivor benefits and benefits on his or her own work record can have claiming options that do not exist with ordinary divorced-spouse benefits.
If a former spouse has died, ask Social Security specifically about surviving divorced spouse benefits rather than assuming the ordinary divorced-spouse rules apply.
What Can a Utah Divorce Court Do With Social Security?
Not much directly.
Social Security is governed by federal law. A Utah divorce court cannot divide future Social Security benefits between spouses the way it can divide many retirement accounts. A judge cannot award one spouse part of the other spouse’s Social Security benefit.
The Utah Court of Appeals addressed this in Olsen v. Olsen, 2007 UT App 296.
The court held that anticipated Social Security benefits cannot be classified as marital property and divided between divorcing spouses. But the court may consider the reasonable likelihood that a spouse will receive Social Security when making an equitable division of the parties’ property.
There is an important limit: the court cannot use that consideration as a backdoor way of treating Social Security itself as marital property.
A Utah divorce decree does not determine whether you qualify for divorced-spouse Social Security benefits. Federal law does.
How Do You Apply?
You apply through the Social Security Administration, not through the Utah divorce court.
You can apply using the methods Social Security makes available for your circumstances, including online for eligible applicants, by telephone, or through a Social Security office. Social Security will ask for information or documents establishing the marriage and divorce, along with identifying and banking information.
You do not need to know your ex-spouse’s Social Security number before applying. Social Security can use other identifying information to locate the record.
Do not assume that “I get half of my ex’s Social Security” accurately describes the rule. Often it does not.
Before choosing when to claim, ask Social Security for estimates based on both your own earnings record and your former spouse’s record.
Most important for someone who is still divorcing: if your marriage is approaching its tenth anniversary, find out what the timing of the divorce decree means before the decree is entered. A few days can make a difference that cannot easily be fixed later.
Utah Family Law, LC | divorceutah.com | 801-466-9277