Can I collect half of my ex’s Social Security benefits after we divorce?

Can I collect half of my ex’s Social Security benefits after we divorce?

A divorced individual must meet certain criteria in order to be permitted to collect their ex’s Social Security benefits.

First, you must have been married for ten years or longer. This does not mean ten years from the date of marriage to the date of separation – this means ten years from the date of marriage to the date of the dissolution. In California, for example, it takes a minimum of six months to get divorced. Therefore, if you file for a divorce nine-and-a-half years after your wedding date, you do not have to be concerned about the ten-year rule. However, if you file for a divorce nine years after your wedding date, and the divorce is entered as a judgment before ten years have elapsed, then you will not be eligible for Social Security benefits.

Second, in most instances, the individual requesting Social Security benefits on his or her former spouse’s work record must not currently be married. If you are at least 60 years old when you remarry, however, you will be eligible to receive Social Security benefits from your prior marriage.

You could apply to receive benefits based on your new spouse’s work record if those benefits would be higher – unless you remarry before turning 60, in which case you would not be eligible for benefits through your new marriage.

A divorced spouse can receive Social Security benefits based either upon his or her contributions or the contributions of the ex-spouse. You are entitled to one-half of the benefits of the ex-spouse, or your benefits, whichever is greater. The divorced spouse must have been divorced for at least two years before he or she can start collecting from the contributing ex-spouse – unless the ex-spouse is at least 62 years of age and already receiving benefits. If the divorced spouse remarries before age 60, he or she is no longer eligible for a percentage of the benefits from the previous ex-spouse – but if the remarriage terminates, the divorced spouse may once again be eligible for benefits from the previous ex-spouse.

If the contributing spouse is deceased, the surviving ex-spouse can collect benefits at age 60 as long as he or she has not remarried.

Pay careful attention to the ten-year marriage rule if you are close to that number and seeking a divorce. Social Security benefits should be taken into consideration when making determinations as to spousal support in a dissolution settlement or judgment.

Wallace S. Fingerett, a Certified Family Law Specialist, is a partner at Feinberg Mindel Brandt & Klein in Los Angeles. He practices Family Law exclusively.