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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 consultation at 201-845-7400.

In some cases, spouses stand to benefit from their ex-spouse’s contributions to social security. The rules can be somewhat confusing. This will likely be at the forefront of anyone’s mind if they are considering divorce and are close to retirement age. This article should provide some insight into understanding social security benefits for divorced spouses.

Social security benefits are not divided like other pensions or retirement funds upon divorce. In most cases, accounts like IRAs, 401(k)'s or other employment-related pensions will be divided using equitable distribution. However, Social Security benefits do not have a particular procedure for division. They are governed by federal rules and do not change very often.

The marriage must last at least ten years before an ex-spouse can receive any spousal benefits via social security. Of course, you must also meet the age requirements before receiving any benefits. Currently, that is 62 for partial benefits. You also cannot have remarried unless the later marriage also ended in divorce or death. If you can receive your own entitlements based on your own record, then this amount must be less than what you would receive from your ex. Essentially, you will only be able to get benefits from the highest source, not both.

You can apply for benefits on the record of your ex-spouse even before they retire, if you have been divorced at least two years before doing so. You will still need to meet other eligibility criteria. If you decide to wait until you have reached full retirement age, then your benefit will be half of your ex-spouse’s full benefits. One positive aspect of applying for social security benefits for divorced spouses is that your ex-spouse’s benefits will not be affected by whether you apply to benefit from their record. In fact, the social security administration will not even let your ex-spouse know that you are claiming benefits based on their record. If your former spouse remarries and his new spouse is collecting benefits on his record, it will not affect the amount that you could receive either.

All of the above rules apply to you if your former spouse is still alive when you apply. If your ex-spouse has died, then the rules are slightly different. If you get remarried after you turn 60, but your ex-spouse is deceased, then you could still stand to receive a benefit based on their earnings. There are also additional rules for caretakers. For example, if you are caring for a disabled child, or caring for the ex-spouse’s child who is under the age of 16, then you can collect on their record. This is true even if you were not married for ten years.

If your ex-spouse is deceased, this can also affect when you can begin receiving benefits. Instead of being 62, you can begin receiving benefits at age 60. If you are disabled, then you can receive them as early as 50. While normally, you would only be entitled to receive one-half of their benefits, if they are deceased, then you could stand to receive his or her full retirement benefits unless you claim it prior to reaching full retirement age. If you are over the age of 60, you will receive between 71.5% and 99% of their benefit, while if you are between 50 and 59, but are disabled, you are entitled to get 71.5% of their benefit.

Do not forget that this process is reciprocal – while you can apply for benefits based on your spouse’s earnings, he or she can also apply for benefits based on yours. Practically speaking, it will be whoever’s earnings are higher throughout their lives whose record will likely be used.

Of course, the usual retirement benefit earnings limits will apply – so if you are still working while you receive benefits, it could decrease the value of the retirement benefits you earn. Furthermore, if you receive money from a pension based on your employment which is not connected to Social Security (like government work), then the benefits you receive based on your ex-spouse’s earnings might also be affected. Thus, if you are under full retirement age and work a full year, the social security benefits will be reduced by $1.00 for every $2.00 you earn above the annual limit. In 2018, the annual limit was $17,040.00. However, once you reach full retirement age, social security benefits will not be reduced, no matter how much you earn.

Payments are not sent automatically. Each party must apply to obtain benefits. This can be done online at, or you can call the Social Security Administration at 1-800-772-1213. Of course, you can also make an appointment to visit your local social security office. You will need to know your former spouse’s social security number. Failing that, you can provide their name and date of birth, and the administration can help you look them up. I strongly urge you to speak to the Social Security Administration before electing to take your benefits.

Rules about former spouses social security benefits can be confusing. If you have questions about social security benefits for divorced spouses, call the Law Office of Peter Van Aulen today for an initial consultation at 201-845-7400.

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