A divorced spouse is entitled to claim social security benefits using their ex’s earning record. Typically, the divorcing spouse is entitled to the greater of the benefit based on their own earnings record or half of the benefit that their ex receives. Half of the benefit the spouse receives is the maximum amount, but depends entirely on whether you have waited until full retirement age to claim social security.
For example, assume you are entitled to a benefit of $800.00 a month based on your own earnings record. However, your ex is entitled to $3,000 a month based on their earning record, you are entitled to $1,500.00 a month (assuming you waited until your full retirement age to apply for benefits). This is half of your ex’s $3,000 a month benefit amount, but your spouse is still entitled to $3,000 a month.
Of course, as with any other government benefit, there are rules that must be followed.
First, you have to have been married for more than ten years prior to the divorce. If you miss the ten year mark, you may want to consider legal separation until the ten years passes.
Second, you cannot remarry if you intend to claim spousal benefits based on your ex’s record. If you do, you may claim spousal benefits on your new spouse’s work record, but not on your ex’s. If your ex remarries, that will not impact your benefit, nor will your benefits impact your ex’s new spouse’s rights. (Note: if your later marriage ends then your right to claim based on your first ex’s record kicks in again).
Third, you have to be 62 years or older to start claiming benefits.
Note that you do not have to wait for your ex to begin claiming social security in order to file for your spousal benefits if you are 62 years or older and have been divorced for at least two years.
Also if you were born before January 2, 1954, and have already reached full retirement age, you can choose to receive only the divorced spouse’s benefit and delay receiving your retirement benefit until a later date. If your birthday is January 2, 1954 or later, the option to take only one benefit at full retirement age no longer exists. If you file for one benefit, you will be effectively filing for all retirement or spousal benefits.
There are various strategies you can use in a divorce to help maximize your social security benefits. A little planning can go a long way. If you are going through a divorce or planning on one, it’s best to meet with a financial advisor up front.
More information on social security is available on the Social Security Administration website.
This post is intended to highlight just certain portions of the Arizona Rules of Family Law Procedure. It is not intended to substitute for professional legal advice on your specific case. The McCarthy Law Firm is a family law firm; however please check with your personal family law attorney for advice specific to your case. Or you can contact our office to speak to one of our family law attorneys to discuss how these rules may impact your specific case.
