What You Need to Know About Social Security and Divorce

Social Security payments can be impacted by divorce if certain requirements are met. Although Social Security payments may not make up a significant portion of your current or future income your rights regarding these payments are an important part of your retirement benefits as determined in a multifaceted divorce.

Social Security Is Not Marital Property

Social Security benefits are not considered marital property and cannot be divided by the court in a divorce or negotiated by the spouses. They also cannot be impacted by a prenuptial or postnuptial agreement. The only way for one spouse to receive Social Security benefits through the other is if they meet the statutory requirements set out for these payments.

Note, however, that if one spouse is entitled to Social Security benefits and the other isn’t, or if one spouse earns more than the other and the lower-earning spouse will not have a right to collect benefits through the higher-earning spouse, this is an important fact that will be considered by the court when dividing marital property and establishing maintenance (alimony) payments.

Spousal Rights to Social Security

Social Security provides for a spouse to receive payments based on their former spouse’s work record in the case of divorce if the following benchmarks are met:

  • The spouse seeking Social Security payments through their spouse is at least age 62
  • The spouse seeking payments is unmarried at the time they would receive payment
  • The spouse seeking Social Security payments does not have enough credits of their own to collect Social Security payments or they would collect less through their own record than through their former spouse’s record
  • The spouse who earned the benefits is entitled to receive payment of benefits
  • The marriage lasted at least 10 years.

If you have been divorced for two years, you can request benefits based on your spouse’s record even if they themselves have not yet filed for benefits, as long as they qualify for them.

Amount of Payment

If the lower-earning spouse is entitled to Social Security payments of their own, the Social Security Administration will pay out those own benefits first and will then pay the difference between those benefits and the benefits they would be entitled to from the higher-earning spouse’s benefits in addition to that.

If the spouse seeking benefits through their higher-earning spouse was born before January 2, 1954 and is at full retirement age, they can choose to receive benefits based only on their spouse’s record and delay receiving their own benefits until a future date. This option is not available for people born after this cut-off.

Impact on the Higher Earning Spouse

It is important to note that if the lower-earning spouse collects benefits through their higher-earning spouse, the higher-earning spouse does not see their benefits reduced at all by this. They still receive the full amount they are entitled to. So it costs a higher-earning spouse nothing to make sure that their spouse will be entitled to collect benefits through them.

Delaying the Divorce to Maximize Social Security

If the divorce is filed before the couple has been married ten years, but that anniversary is approaching, waiting to complete the divorce until that anniversary will ensure that the lower-earning spouse has access to Social Security benefits through their spouse. This can reduce the amount of maintenance that has to be paid by the higher-earning spouse to the lower-earning spouse.

Working and Social Security

The lower-earning spouse seeking benefits through their higher-earning spouse is allowed to work and receive benefits at the same time, but there are some caveats to keep in mind for this spouse:

  • If you are under full retirement age for the entire year, $1 is deducted from benefits for every $2 you earn over the annual limit (the 2022 limit is $19,560).
  • In the year in which you reach full retirement age, $1 is deducted from benefits for every $3 you earn over the annual limit ($51.960 in 2022) only for the months before the month you reach retirement age.
  • Once you pass the year in which you hit full retirement age, there is no reduction in benefits based on your earnings, so you can work and earn as much as you want and still get the full amount of benefits.

Pensions and Social Security

If the lower-earning spouse receives a pension, this does not count against them when seeking Social Security through their spouse.

Remarriage and Social Security

If the higher-earning spouse remarries:

  • The divorced spouse can continue to collect benefits
  • The new spouse will be eligible for benefits through their spouse if they meet the qualifications

If the lower-earning divorced spouse is receiving benefits through the higher-earning spouse’s benefits and the lower-earning spouse remarries, their benefits through their former spouse stop.

Death and Social Security

If the higher-earning spouse dies, the lower-earning spouse is entitled to collect benefits if the marriage lasted 10 years or more before the divorce. Benefits paid to a surviving divorced spouse will not reduce benefits paid to other survivors.

If the lower-earning spouse is caring for a child under age 16 or a child with a disability and the child gets benefits through the deceased former spouse, the surviving divorced spouse can collect benefits without having to have been married for 10 years. The collection of this kind of benefit will have an impact on others who claim benefits against the higher-earning spouse’s record.

Note that if there is a surviving divorced spouse and a surviving spouse who are both entitled to benefits, they both will collect without impacting the other’s benefits.

Social Security benefits might seem like a small piece of your divorce, but, over time, they can total a significant amount, so it is important to understand what you are entitled to.


Dror Bikel

Dror Bikel founded and leads Bikel Rosenthal & Schanfield, New York’s best known firm for high-conflict matrimonial disputes. A New York Superlawyer℠ and twice recognized (2020 and 2021) New York Divorce Trial Lawyer of the Year, Dror’s reputation as a fearsome advocate in difficult custody and divorce disputes has led him to deliver solid outcomes in some of New York’s most complex family law trials. Attorney Bikel is a frequent commentator on high profile divorces for national and international media outlets. His book The 1% Divorce - When Titans Clash was a 5-category Amazon bestseller.

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