Divorce and Social Security Rules: What to Know

Mark Cussen, CMFC, has 13+ years of experience as a writer and provides financial education to military service members and the public. Mark is an expert in investing, economics, and market news.

Updated December 10, 2023 Fact checked by Fact checked by Ryan Eichler

Ryan Eichler holds a B.S.B.A with a concentration in Finance from Boston University. He has held positions in, and has deep experience with, expense auditing, personal finance, real estate, as well as fact checking & editing.

Part of the Series Divorce Survival Guide

How the Process Works

  1. Divorce Planning Checklist
  2. Alternatives to Court: Mediation vs. Arbitration
  3. Top Financial Mistakes to Avoid in a Divorce Settlement
  4. "Divorce" When You're Not Legally Married
  5. The Most Surprising Divorce Laws by State
  6. The 6 Best Online Divorce Services of 2021
  7. How to Find a Divorce Lawyer

Dividing the Property

  1. De-Coupling Your Finances: How to Un-Merge Your Money in a Divorce
  2. Spitting Property After a Common-Law Marriage
  3. Who Gets the Frozen Embryos and Other Issues
  4. Prenup vs. Postnup: How Are They Different?
  5. Certified Divorce Financial Analyst (CDFA)
  6. How Life Insurance Works in a Divorce
  7. The Most Expensive Divorces in History

Divorce and Your Children

  1. How Parents' Finances Impact Custody Battles
  2. Guidelines for Child Support
  3. Can My IRA Be Garnished for Child Support?

Divorce and Retirement

  1. 12 Mistakes to Avoid When Divorcing Over 50
  2. Qualified Domestic Relations Order (QDRO) Definition
  3. Divorcing? The Right Way to Split Retirement Plans
  4. How to Protect Your Retirement After a Divorce
  5. How to Protect Your Pension in Divorce
  6. How Getting Divorced Affects Your Roth IRA
  1. The Fundamentals of Spousal Support Taxation
  2. How Divorce Impacts Your Credit Score
  3. Using QDRO Money From a Divorce to Pay for a New Home
  4. Divorce and the New Social Security Rules
CURRENT ARTICLE

Legal Terminology A-E

  1. Alimony Definition
  2. Alimony Payment Definition
  3. Common Law Property
  4. Court Order Acceptable for Processing (COAP)
  5. Equitable Distribution Definition

Legal Terminology F-Z

  1. Irrevocable Beneficiary Definition
  2. Legal Separation Definition
  3. Tenancy by the Entirety Definition
  4. Tenancy in Common Definition

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 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 6.5%-7.5% 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.