Cincinnati Family Law & Divorce Blog: How Are A Spouse’s Rights To The Other Party’s Social Security Benefits Determined In A Divorce?
One’s rights to claim Social Security benefits under their ex-spouse’s earned benefits is determined by federal law, rather than state domestic relations law. For this reason, except in very unusual situations, a divorce or dissolution decree is silent as to the parties’ rights to claim under the other party’s benefits after the divorce.
The Social Security Administration states that you can receive benefits if you were married to an ex-spouse for more than 10 years, you are 62 or older, you are currently unmarried AND your benefits from your own work record would be lower than the benefits you would receive based on your ex-spouse’s work. The latter determination is whether your own earned benefits are less than one-half of your ex-spouse’s benefits. What is often surprising to most people is that a divorced spouse’s benefit does not reduce the other spouse’s earned benefit. In other words, the Social Security Administration will payout 150% of one spouse’s benefit.
It will not matter whether your ex-spouse has applied for his or her benefits at the time you wish to or even if your ex-spouse has remarried and has a current spouse. You will still be entitled. There are certain rules that apply if you are divorced within 2 years or less of your request to initiate Social Security benefits.
Happily, your ex-spouse has no say as to whether you receive benefits under his or her work record and your ex-spouse will not even know that you are claiming off of his or her record.
If a person has been married more than once, for more than 10 years with each marriage, he or she is permitted to claim benefits under any one of the former spouse’s work record.