Social Security Benefits and Divorce

If you have been married for at least ten years, then getting a divorce does not prevent you from collecting a share of your former spouse’s Social Security benefits. If you choose to remarry, then your entitlement attaches to the new spouse and any benefit from your old spouse would be terminated. But, if your subsequent marriage ends in divorce, if it is null and void, or you are widowed, then the first entitlement might re-attach to you. Notably, your spouse’s subsequent marriage to another person has no impact on your entitlement to collect a portion of the benefits they stand to receive.

Before receiving any Social Security benefits, you must be over the age of 62 years, or older. Additionally, your own Social Security Benefit must be less than what you could receive if you choose to collect part of your former spouse’s benefits. If you meet these qualifications, then you can receive up to fifty-percent of the benefits due to your former partner. Your ex will likely not even find out you are collecting because they will not be given any notice of your application.

When can I Collect my Ex-Spouse’s Social Security Benefits?

Anyone can begin receiving Social Security Benefits at the age of 62, or they can choose to delay collecting. The longer you wait, the higher the annual amount that stands to be received. After you reach the age of 70, there is no longer a rate increase for delaying benefits. These are important factors in determining when you choose to start collecting in view of your ability to receive Social Security Benefit through your former spouse.

For example, if your spouse has reached 62 and has not yet sought benefits and you meet the qualifications, you can make an application for your share of your ex-spouse’s benefits and delay receiving your own benefits. You can also do the opposite and start receiving those benefits immediately. But, the earlier you decide to claim benefits, the less that you’ll receive.

At the time of your divorce in NJ, you do not have to file any special papers or ask the court for specific orders to enable you to receive your share of social security benefits. This happens automatically, by virtue of federal law, which trumps state law concerning federal benefits.

No Impact on Ex-Spouse’s Benefit if You Collect

As odd as it sounds, if you begin collecting you share of the benefits from your ex-spouse, it will not affect the amount they stand to receive when they choose to apply. Furthermore, your ex-spouse’s new spouse will also not feel any effects, and if they have children under 16, collecting their benefits will not impact their receipt of benefits, should your ex-spouse die. There is no need to feel guilty (or, depending on the circumstances, vengeful) when you choose to apply for your former spouse’s social security benefits.

If Your Ex-Spouse is Deceased

If your ex-spouse has died, then you can still receive any benefits that your ex-spouse might have accrued under Social Security, provided you two were married at least 10 years. You should still be entitled to benefit from the Social Security, and can even collect the benefits earlier, at age 60. In some circumstances, such as a disability, you can receive them even young, at age 50.

What if your marriage did not last ten years? You could still receive some of your ex-spouse’s Social Security benefits if:

  • You are actively caring for ex-spouse’s children
  • Said children are either disabled or under 16 years of age
  • The children can receive benefits based on your ex-spouse’s work record
  • The benefit you receive is a kind of payment in exchange for caring for the children
  • and any benefits you do receive will cease once the youngest child hits 16 years old

Even though there is no special language required in a divorce in NJ, you still have to proactively apply for benefits. You will need to contact the office of Social Security Administration, which can be done online at They will then determine the amount of benefits you are eligible to receive. You will need to supply your ex spouse’s social security number, but if you cannot find it, then in most cases, the office will accept his date and place of birth, along with the names of each of his or her parents. Therefore, it’s a good idea to keep copies of any joint tax returns you might have filed together in case you decide to claim social security benefits in the future.

If you need to discuss divorce in NJ and social security issues, call the Law Offices of Peter Van Aulen for a free comprehensive in office consultation at 201-845-7400.

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