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What Happens With Social Security Benefits If We Get Divorced?

Elderly woman

Concerns about Social Security benefits are increasingly mentioned in New Jersey divorce cases.

A grey divorce, refers to the demographic trend of an uptick in divorces among couples over 50 who have been married for many years. While the labels are new, the trend has actually been on the upswing for decades.

Although some elements of divorce are simpler when those involved are older (i.e., child custody issues are less likely a significant concern), other aspects are more complex. The longer you and your spouse have been together, the more untangling of assets and debts is required. If you’ve been married for more than 10 years and are considering divorce, you’ll want to discuss Social Security benefits with your Hackensack divorce lawyer.

Basics of Social Security Collection

As explained by the Social Security Administration, there are several factors the government considers before allowing you to collect benefits based on a former spouse’s work record. The criteria include:

  • You must have been married for at least 10 years.
  • You must be over the age of 62.
  • You must be currently unmarried. (It doesn’t matter if your ex has remarried or not.)

It’s also important to note that whatever benefit you get from Social Security based on your own work history needs to be less than what you’d receive from your spouse. Basically, you are able to collect one or the other - but not both - and choose whichever is the larger payout. Further, for you to be eligible, your ex must be eligible for SS retirement or disability. Even if your ex hasn’t taken them yet, you can, so long as your divorce was final more than two years prior.

If you’re eligible to receive benefits based on your former spouse’s work record, the exact amount you receive will depend on what your ex qualified for and when you take your benefits. It’s usually somewhere between 33 percent and 50 percent of what your spouse receives. If you hold off until you’re full retirement age, you’ll be entitled to half of what your former spouse gets. If you decide instead to receive payments before then, you’ll receive less, not only now, but for the duration of the payments. Your benefit won’t have any impact on your ex’s benefit.

In the event your ex dies before you, benefits may continue, and you may be eligible to receive surviving divorced spouse benefits, which could be the full amount your former spouse received at the time of death.

A new marriage could affect this, but only if you remarried before age 60 (or before 50 if you are disabled). If you have multiple former spouses, you can only collect benefits based on the work history of one of those. If your ex remarried several times, you can still collect benefits based on their work record, so long as you were married to your ex spouse for at least 10 years.

Talk to a Lawyer First

The SSA has a great guide on how benefits are distributed to spouses, including after a divorce.

You should know that a former spouse doesn’t have any control over your eligibility for Social Security benefits based on their work record. It’s generally not something that is negotiated during a divorce. However, it could arise in discussions about equitable division of assets and alimony and how much a dependent spouse will need to maintain a lifestyle reasonably aligned with the one they shared. For this reason, particularly for senior clients, it’s important to review your Social Security eligibility with your divorce attorney.

Call Rozin|Golinder Law, LLC today at (732) 810-0034 for a free and confidential consultation.

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