How Will Divorce Affect Social Security Payments?

When a long-married couple divorces, finances are often at the forefront of their concerns. Will I need to go back to work? Will I be able to survive on my share of the 401(k)? Will my savings be enough?

Thankfully, there is always Social Security to fall back on. But your Social Security payments, just like a pension or a savings account, can be affected by a divorce. The rules have changed a bit when it comes to collecting spousal benefits, and it is important that you understand how so you can plan accordingly. You don’t want to end up losing benefits which you are entitled to receive.

Can you collect your ex-spouse’s Social Security benefits?

You can, but there are some requirements you must meet:

1. You had to have been married for at least 10 years.
2. You must be at least 62 years old.
3. You must be single.
4. You must be earning less (or anticipate earning less) in Social Security benefits than your ex.

There’s one other change that could affect you as well: if you and your ex have been divorced for at least two continuous years, you can start collecting Social Security spousal benefits even if your ex hasn’t filed for them yet. Current spouses aren’t allowed to do that, so this is a big deal. Note that the amount of benefits that you can receive does not affect the amount your ex (or his or her new spouse) can receive.

Can you collect spousal benefits if you are also collecting your own Social Security?

Yes. You don’t have to decline your own Social Security benefits in order to collect spousal benefits. The spousal benefits will just be extra money for you each month. You collect your own Social Security, and then the spousal benefits on top of that.

Can you still receive Social Security benefits if your ex-spouse remarries?

If you meet the above criteria, you can still collect Social Security benefits from your ex, even if he or she has remarried.

Important changes to restricted claims

If you were born on or before Jan 1, 1954, you are allowed to participate in a practice known as “file and suspend. “With this practice, ex-spouses are permitted to file a restricted claim for spousal benefits at their full retirement age and suspend their own benefits until a later time.

This practice allows you to increase your own benefits by eight percent per year until age 70. Once you turn 70, you have to use your own benefits. (You can switch earlier, if you like.)

This is not the case for people born on or after Jan 2, 1954. The rule change means you cannot switch from one to the other: “under the rule change, divorced spouses who were born on or after Jan. 2, 1954, are deemed to be filing for all available benefits (spousal as well as their own) when they apply for Social Security. They will automatically receive whichever benefit is higher, but they can no longer take one type of benefit now and switch to another one later.”

How are Social Security benefits handled when your former spouse dies?

If you are collecting spousal benefits and your ex dies, you can still receive your former partner’s benefits. A divorced spouse can become eligible to receive these survivor benefits as early as age 60; if you are disabled, the eligibility age is 50 years old.

You have two options for collecting:

1. You file for survivor benefits at age 60, and switch over to your own benefits at age 62.
2. You file for your own benefits at age 62, and then switch over to spousal benefits at age 66 or 67.

Can you file for survivor benefits early?

Spouses who have a disability may file early. You may also file early if care for your ex’s natural or legally adopted child. To meet the requirements, the child must be younger than 16 years old and/or disabled and entitled to benefits. Under this type of circumstance, the requirement that the couple must be married for at least ten years is waived. However, the benefits only last until the child either reaches age 16 or is no longer disabled.

Can you file for survivor benefits if you remarry?

You can, but you must be at least 60 years old. If you are younger than 60, you cannot collect survivor benefits from your ex-spouse.

Is there any way to keep your Social Security benefits in a divorce?

You could, as part of your divorce agreement, say that neither one of you will attempt to collect spousal benefits. You could do the same in a prenuptial agreement, too. But you do not have to do this. The amount of benefits your ex can collect will not affect the amount you receive in any way. That’s not how the Social Security program works. If you make less than your ex does, or if your total earnings are less, then he or she would not be entitled to your benefits, anyway.

However, you should know that Social Security benefits are taxable income. Tennessee does not tax Social Security separately (some other states do), but you still have to pay taxes on any income you have, which includes Social Security. For this reason, you may wish not to collect survivor’s benefits, if it will push you into a different tax bracket.

Clients rely on the Law Offices of Adrian H. Altshuler & Associates to protect their interests. They know we do everything we can to aggressively pursue justice on their behalf. We can do the same for you. Our divorce attorneys represent clients in Franklin, Brentwood, and Columbia, and throughout Tennessee. Call us today at 615-977-9370 or use the contact form to schedule your free initial consultation.