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Divorce and Social Security Rules: What to Know

The rules for spousal benefits differ based on when you were born

A change to federal law created two different rules for ex-spouses who want to apply for Social Security spousal benefits based on their former partner’s earnings record. Which one applies depends on the applicant’s date of birth. The change is the result of the Bipartisan Budget Act of 2015. Here is what you need to know.

Key Takeaways

  • Divorced spouses may be eligible to receive Social Security benefits based on their former spouse’s earnings record.
  • Divorced persons born before Jan. 2, 1954, may file for spousal benefits at their full retirement age and suspend theirs until a later date, whereas people born thereafter must file for both at the same time.
  • If their former spouse is deceased, divorced spouses may be eligible for survivor benefits, which have their own set of rules.
  • The 10-year marital requirement is waived if the surviving divorced spouse is caring for the decedent's child who is younger than age 16 or is disabled.
  • An ex-spouse can file a claim for spousal benefits even if their ex-spouse has not filed for their own benefits.

Divorced Spouse Social Security: Rule Change

The basic rules for divorced spouses and Social Security say that if an individual was married for at least 10 years and then divorced, they are eligible to collect spousal benefits on the earnings record of their ex-spouse as long as they are at least 62 years of age and currently single. The divorced spouse can collect on the ex-spouse’s account under these circumstances even if the ex-spouse has remarried.

Furthermore, if the couple has been divorced for at least two continuous years, the ex-spouse can claim benefits based on the other partner’s earnings even if the latter has yet to file for benefits. This contrasts with the rules for current spouses, who can’t collect benefits unless their spouse is already collecting them.

Ex-spouses who were born on or before Jan. 1, 1954, are allowed to file a restricted claim for spousal benefits at their full retirement age (FRA) and suspend their own benefits (based on their own work record) until later, a practice known as file and suspend. This allows their own benefit to keep growing by 8% a year up to age 70 when their benefit maxes out. At that point—or sooner, if they wish—they can switch over to their own, higher benefit.

However, under the rule change, divorced spouses who were born on or after Jan. 2, 1954, are deemed to be filing for all available benefits (spousal as well as their own) when they apply for Social Security. They will automatically receive whichever benefit is higher, but they can no longer take one type of benefit now and switch to another one later.

Spousal benefits and survivor benefits have different eligibility requirements and other rules.

Different Rules for Survivor Benefits

The rule about not switching benefits does not apply to Social Security survivor benefits, which divorced spouses may be eligible for if their former partner is deceased. Divorced spouses can file for survivor benefits as early as age 60 (age 50 if they are disabled) and switch over to their own benefit as early as age 62. They also have the option of filing for their own benefit first, as early as age 62, then filing for survivor benefits when they reach their FRA (66 to 67 for most people) if that will result in a higher benefit.

A worker must earn a certain amount of Social Security credits (no more than 40) to qualify for benefits. The number of credits needed for survivor's benefits depends on the age of the worker at the time of death.

Divorced spouses who are caring for their deceased spouse’s natural or legally adopted child who is younger than age 16—or disabled and entitled to benefits—can apply at any age. In this case, the rule that the couple must have been married for at least 10 years is also waived. However, the benefits will last only until the child reaches age 16 or is no longer disabled.

What Percentage of Social Security Benefits Can Divorced Spouses Get?

Divorced spouses can receive up to 50% of their ex-spouse's benefit. If filing before their full retirement age, the benefit is reduced by approximately 7% for each year claimed before full retirement.

How Do I Claim Social Security Benefits From a Divorced Spouse?

Divorced spouses can file a claim for Social Security benefits online at www.ssa.gov or in person at a Social Security Administration office.

Do Widows Who Remarry and Divorce Get Social Security Benefits?

After age 60, the widow receives the full survivor's benefits even if remarried. A widow who remarries before age 60 is not entitled to their late spouse's Social Security benefits; however, if that widow marries and then divorces the latter spouse, the widow may become eligible for survivor benefits from the deceased spouse.

How Long Do You Have to Be Married to Get Military Benefits After Divorce?

A former spouse is entitled to military benefits if their marriage lasted for at least 20 years, the serviceperson had at least 20 years of military service, and there were at least 20 years of overlap between the marriage and military service.

Article Sources
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  1. United States Congress. "H.R.1314 - Bipartisan Budget Act of 2015."

  2. Social Security Administration. "Ex-Spouse Benefits And How They Affect You."

  3. Social Security Administration. "What Every Woman Should Know," Page 16.

  4. Social Security Administration. "Retirement Benefits: Benefits for Your Spouse."

  5. Social Security Administration. "Filing Rules for Retirement and Spouses Benefits."

  6. Social Security Administration. "Delayed Retirement Credits."

  7. Social Security Administration. "Retirement Benefits," Page 3.

  8. Social Security Administration. "If You Are the Survivor."

  9. Social Security Administration. "Who can get Social Security survivors benefits and how do I apply?"

  10. Social Security Administration. "Benefits for Children."

  11. Social Security Administration. "Ex-Spouse Benefits And How They Affect You."

  12. Forbes. "A Comprehensive Guide To Social Security After Divorce."

  13. Social Security Administration. "Widows Waiting to Wed? (Re)Marriage and Economic Incentives in Social Security Widow Benefits."

  14. Military. "What is the 20/20/20 Rule in Military Divorce?"

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