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  • Writer's pictureJames McGlynn CFA, RICP

Social Security and Divorce- dispelling misconceptions

When I talk to people about Social Security and divorce I am amazed at how much wrong information there is about such a major benefit. In this article, I'm going to explain how long you need to be married to qualify for spousal and survivor benefits from Social Security.

In recent weeks I’ve had a number of conversations with women who had no idea that they were even eligible for spousal benefits based on their ex-husband’s earnings record. I also recently watched Dirty John: The Betty Broderick Story which gave completely erroneous advice on benefits for ex-spouses.

My hope: Someone reading this may learn that he or she is eligible for spousal or survivor benefits from an ex-spouse.

First things first: who is eligible for benefits from an ex-spouse if divorced? It doesn't matter if it's an online divorce, traditional divorce or a DIY divorce--a divorced spouse is eligible for Social Security spousal benefits if he or she was married for 10 years or more.

Being married for 9 years and 364 days doesn’t cut it. The benefit is not pro-rated. Every divorce lawyer in the country should be aware that it might be worth delaying a divorce so the marriage lasts at least 10 years.

Click here ahead for more divorce statistics

You could be married from age 20 to age 30 (10 years) get an uncontested divorce or one that drags on in court, and later when filing for Social Security be eligible for spousal benefits (if not currently married.) If you learn only one thing from this article know that the 10 -year marriage minimum can be very important to receive spousal benefits as a social security beneficiary. 

The benefit may be available at your age 62 and the “ex” reaching age 62 after being divorced at least 2 years.

When I tell someone that they might be entitled to spousal benefits from a divorce there are some questions that I inevitably hear.

Will my “ex” know that I am filing for spousal benefits? No.

Social Security does not inform the “ex” if you are filing for spousal benefits. You give the Social Security number of your “ex” to Social Security and some other information and they don’t need to tell the “ex”.

If you don’t have that information Social Security will investigate for you to verify the benefit.

Can my “ex” stop me from collecting? No.

Neither the courts nor the states can withhold this benefit from you. Social Security is a federal program and if you qualify for the benefit you will receive the payment.

Does my payment reduce the benefit for my “ex”? No.

Your “ex” will receive the same amount whether you file for the benefit or not.

What if my “ex” has re-married does that affect the benefit? No.

The “ex” can be re-married and your benefit remains the same and the current spouse can receive a benefit as well.

Will I automatically receive this benefit? No.

You will have to inform Social Security of this benefit, they will not seek you out for this benefit.

Can I receive the spousal benefit if I am re-married? No.

You may only receive the spousal benefit in a divorce if you are not currently married. If you re-marry and get divorced again you will be entitled to the spousal benefit.

The spousal benefit in a divorce can be very helpful financially but there is another benefit tied to this that can be even more beneficial-survivor benefits. Spousal benefits are available when the “ex” is alive whereas survivor benefits are available when the “ex” is deceased.

Before the pandemic I was taking a yoga class and the instructor said that she would be filing for Social Security soon. She mentioned that she was divorced and her “ex” was deceased. I told her that she was eligible for survivor benefits on her “ex” since they had been married over 10 years.

I gave her my book and pointed out how she should file. If I am randomly encountering individuals who are not receiving benefits there must be thousand more who are not receiving benefits to which they are entitled.

Spousal benefits are available at age 62 and can increase up to age 66-67. The maximum benefit is only half of the “ex”’s benefit at age 66-67.

Survivor benefits are available at age 60 (or 50 if disabled) and can increase up to age 66-67. The benefit can be equal to the “ex”s FULL benefit.

Therefore survivor benefits can be double spousal benefits upon the death of the “ex”! If you have filed for spousal benefits then Social Security will automatically increase the benefit upon the death of the “ex”. But if you haven’t filed for spousal benefits Social Security will not inform you of your extra benefits-it is incumbent on you to file for these benefits.

The patron Saint for discussing divorce and Social Security is Johnny Carson. The late-night talk show host had four marriages.

As a youngster I remember him and Ed McMahon joking about their divorces because there were so many divorces. I researched Johnny Carson’s marriages to Joan, Joanne, Joanna and Alexis and found some useful examples.

His first marriage to Joan lasted 15 years so she would be entitled to spousal benefits. His second marriage to Joanne lasted only 9 years so she would not be entitled to spousal benefits. His third marriage to Joanna lasted 13 years so she would be entitled to spousal benefits. His fourth marriage to Alexis lasted 18 years until his death.

Alexis was not entitled to spousal benefits because she was too young but when she reached age 60 she would be entitled to survivor benefits!

Johnny’s first and third wives would have been entitled to spousal benefits since they were married over 10 years to him. His second wife would receive no Social Security benefit since the marriage lasted only 9 years.

The spousal benefits would not be affected by the number of spouses-there can be multiple ex-spouses and a current spouse. Upon Johnny Carson’s death the spousal benefit would increase to become a survivor benefit.

Again there can be multiple survivor benefits regardless of the number of spouses.

I mentioned the most important fact to remember is that a marriage lasting 10 plus years can unlock spousal benefits and potentially survivor benefits. The second important fact to remember is that if you are planning to re-marry and you are not yet age 60, you should wait.

Social Security has a strange age requirement regarding survivor benefits. If you are divorced and will be entitled to spousal benefits because you were married 10 plus years and do not re-marry till age 60, you will be entitled to survivor benefits on the “ex” even if you are re-married.

I worked with a woman who was age 59 and she asked me about this. She wanted to get re-married but didn’t want to lose the potential survivor benefit on her “ex”. She waited to get re-married until she turned age 60.

Now, when either her current spouse or her “ex” spouse dies she will be entitled to survivor benefits. Whereas every divorce attorney needs to know that 10 years is necessary for spousal benefits, every retirement planner needs to know about the “wait to age 60 “ to get re-married survivor benefit potential.

When I first learned about these unusual Social Security rules I was very confused-as you may be as well. I use software to calculate the maximum benefits because there are so many unusual situations.

The two important take-aways to remember are : a marriage that last 10 years might earn a spousal benefit and if getting re-married there is a survivor benefit if you can wait till age 60!

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