Divorce & Social Security

When most people picture divorce planning, they think about spousal support, dividing the house, or splitting a 401(k). One asset that’s just as important — but rarely discussed until it’s too late — is Social Security. For couples who were married for a long time, the rules around ex-spouse benefits can mean thousands of dollars a year in retirement income. Understanding how these rules work before your divorce is finalized can help you protect a benefit you may not even know you’re entitled to.

Can You Collect Social Security on Your Ex-Spouse’s Record?

Yes — under certain conditions, you may be eligible to collect a Social Security benefit based on your former spouse’s earnings record, even after divorce. The Social Security Administration (SSA) allows this as long as you meet a few requirements:

• Your marriage lasted at least 10 years. This is the single biggest threshold in divorce-related Social Security planning. If your marriage falls even a few months short of the 10-year mark, you generally will not qualify for benefits on your ex-spouse’s record.
• You are currently unmarried. If you remarry, you typically lose eligibility for benefits based on your former spouse’s record (though there are exceptions if that later marriage also ends).
• You are age 62 or older.
  The benefit you would receive based on your own work record is less than the benefit based on your ex-spouse’s record. SSA will pay you the higher of the two amounts, not both added together.

If you qualify, you can generally receive up to 50% of your ex-spouse’s full retirement benefit amount, depending on the age at which you claim.

Why the 10-Year Mark Matters So Much in Divorce Timing

Because the 10-year threshold is a hard cutoff, it sometimes becomes a real factor in the timing of a divorce. We occasionally hear from clients who are approaching their 10-year anniversary and want to know whether it makes sense to wait a few months before filing. This is a deeply personal decision, and there’s no one-size-fits-all answer — but it’s exactly the kind of detail an experienced divorce attorney can help you think through before you file, not after.

It’s also worth noting: your ex-spouse does not need to have started collecting their own Social Security benefits for you to claim on their record, as long as you’ve been divorced for at least two years and both of you are at least 62.

Does Claiming Benefits on an Ex-Spouse’s Record Affect Them?

No. This is one of the most common misconceptions people have. Collecting a spousal benefit based on your ex’s earnings record has zero effect on the amount your ex-spouse receives, and it does not reduce benefits for their current spouse if they’ve remarried. Social Security treats each of these claims independently.

What If You Remarry?

If you remarry, you generally lose the ability to claim on your first spouse’s record unless that second marriage also ends (through divorce, annulment, or death). This is another reason it’s worth having a clear picture of your Social Security options as part of your overall divorce and retirement planning — remarriage decisions later in life can have financial ripple effects that are easy to overlook.

Social Security and Divorce Settlements

Unlike a 401(k), pension, or IRA, Social Security benefits cannot be divided in a divorce settlement. They are not treated as marital property in Michigan, and a judge cannot award a portion of one spouse’s future Social Security benefit to the other as part of the property division. However, understanding your future Social Security eligibility can still be an important factor when negotiating spousal support or divvying up other retirement assets, since it affects your overall financial picture in retirement.

For example, a spouse who qualifies for a meaningful benefit on their ex’s record may have less need for other retirement assets to be weighted in their favor during settlement negotiations — while a spouse who falls just short of the 10-year mark may need those other assets addressed more carefully.

A Few Common Questions We Hear

Do I need to notify Social Security when I get divorced? Not immediately, but you’ll need documentation of your marriage and divorce (including your ex-spouse’s Social Security number, if possible) when you eventually apply for benefits, whether that’s on your own record or your ex’s.

What if my ex-spouse has passed away? If your ex-spouse has died, you may be eligible for survivor benefits based on their record, which can be worth up to 100% of what they were receiving, and the marriage length requirement drops to 10 years as well — but the age and remarriage rules differ slightly from spousal benefits taken while both parties are alive.

Should I get legal advice about this before my divorce is final? Yes. While your divorce attorney isn’t a substitute for a financial advisor or the SSA itself, understanding how the timing and terms of your divorce interact with future Social Security eligibility is something worth raising during your case, especially in a long-term marriage.

Talk to a Michigan Divorce Attorney Before You File

Social Security is often the last thing people think about during a divorce, but for many couples — especially those who’ve been married close to or beyond the 10-year mark — it can be one of the more financially significant pieces of the puzzle. If you’re considering divorce and want to understand how the timing and structure of your case could affect your future benefits, we’re happy to talk it through with you.

Contact The Mitten Law Firm today to set up your 100% free consultation. 13615 Northline Rd., Southgate, MI 48195 (734) 765-9382 | Law@MittenLaw.com