Common Misconceptions About Claiming Your Social Security Benefit After Divorce

social security benefit claim after divorce

Many people assume incorrectly that divorce puts an end to their eligibility for Social Security benefits that they might have received based on their spouse’s work record. But in fact, many divorcees with limited work histories are eligible to receive Social Security benefits when the time comes based on their ex’-spouse’s employment history.

Depending on your circumstances, if you are divorced, you may be able to receive:

  • Social Security retirement benefits based on your own covered earnings history
  • Auxiliary spousal benefits, which are determined by a living or deceased former spouse’s covered earnings history
  • A combination of your retirement benefits and spousal benefits.

As divorce attorneys, Charles R. Ullman & Associates looks at potential Social Security benefits when working with our clients on the division of marital assets and when considering demands for spousal support. Below, we address some frequently asked questions about Social Security benefits for a divorced spouse. If you have questions about your particular situation, contact us today for an appointment.

My spouse wants our divorce settlement to say I cannot get spousal benefits from their Social Security. Is that legal?

Social Security is a benefit defined by federal law. If you qualify for benefits, no one can stand in your way of receiving the benefits. Claiming Social Security benefits based on your ex-spouse’s work history will not affect the amount that your ex-spouse receives from Social Security.

You may file for benefits if you are eligible.

You qualify for spousal benefits based on your ex’s earnings record if all of the following are true:

  • You and your ex-spouse were married for at least 10 years
  • You have not remarried
  • You are at least 62 years old
  • Your ex qualifies for Social Security retirement or disability benefits.

If you are not yet 62, you qualify if you are the primary care provider for a child who is under age 16 or who receives Social Security disability benefits.

If your former spouse is not yet collecting Social Security benefits, you cannot claim ex-spouse benefits until at least two years after your divorce. If your ex is already receiving benefits, there is no waiting period.

Your spousal benefit could range from 32.5% to 50% of the monthly benefit your ex-spouse is entitled to at his or her full retirement age, depending on your age when you claim it.

However, if your Social Security retirement benefit based on your own work record is more than the spousal benefit, you’ll receive the benefit payable on your work record. You cannot receive both.

Does the benefit I receive as a divorced spouse decrease what my ex gets from Social Security?

Claiming the Social Security benefit you are due because of your ex-spouse’s work history will not affect what your ex-spouse receives from Social Security. Even if your ex-spouse remarries, the benefit their new spouse may receive is not changed by you obtaining what you are due. Everyone’s benefit is calculated separately.

Will I be eligible for spousal Social Security benefits through my ex-spouse if I remarry?

If you are eligible to collect benefits on your ex-spouse’s work record, your eligibility generally disappears if you remarry. But your eligibility for benefits changes again if that marriage ends in divorce or is annulled or if that spouse dies.

If you remarry before you turn 60 and that marriage ends, then you may become eligible again to receive Social Security benefits based on your prior deceased spouse’s earnings record.

If you remarry after age 60, you may still be entitled to benefits on your prior deceased spouse’s earning record.

If you were married to more than one spouse for 10 years or longer, you can receive benefits based on whichever ex-spouse’s work record results in a higher payment.

If I take spousal benefits early, like as soon as I turn 62, does this affect my benefit amount?

Taking Social Security benefits before your full retirement age reduces the amount of benefits. The year and month you reach full retirement age and are eligible for a full benefit depends on the year you were born.

Your spousal benefit will be a percentage of your ex-spouse’s benefit at full retirement age. The benefit you may receive ranges from 32.5% to 50% of your ex-spouse’s benefit, with it increasing the longer you wait to claim it.

If you apply for benefits between age 62 and your full retirement age, the benefit is permanently reduced by a percentage based on the number of months until you reach your full retirement age.

However, if your ex-spouse dies, you can claim survivor benefits at age 60. Remarrying before age 60 will make you ineligible for survivor benefits based on your first spouse’s work record. If you wait until you are 60 or older to remarry, you can still collect survivor benefits based on your previous spouse’s work record.

Should I claim Social Security benefits based on my ex’s work record?

A person should always wait until full retirement age to collect Social Security retirement benefits, if at all possible. This may require working longer and/or spending down other funds for several years. But the difference between receiving 32.5% or 50% of an ex-spouse’s retirement benefit (or your own full retirement benefit) is substantial.

In the meantime, how long you must wait to qualify for Social Security benefits may have a significant impact on your separation agreement and your future finances. As your divorce attorneys, Charles R. Ullman & Associates can help you look at the various scenarios for obtaining the best available Social Security benefit as well as other financial considerations as you seek a divorce. Determining all that our clients are due from Social Security and other entitlements, as well as from their ex-spouses, is part of our mission to protect a client’s financial future after a divorce.

We are a Raleigh, N.C., law firm that focuses on family law. Attorney Charles Ullman is a board-certified specialist in North Carolina family law, a certification that requires additional education, extensive experience, and a written examination.

Our legal team focuses on providing compassion, understanding, and clear advice as we guide our clients through divorce and the transition to a new life. Phone (919) 336-0136 or contact us online today to set up an initial consultation.


Charles Ullman & Associates provides you respected, experienced and knowledgeable divorce and family law attorneys. You can trust us to help you through the legal process efficiently and effectively so you can transition to the next phase of your life. Our community involvement reaches beyond charitable support of important causes. We launched our own movement in Fraternities4Family and provide scholarships to able students in need.