December 1, 2025
Ten Tips About Social Security and Divorce
The topic of social security benefits is obviously relevant for a divorcing couple where one or both are retired, approaching retirement or disabled. But, it can sometimes impact divorce planning and strategy even for healthy people who aren’t yet approaching, or perhaps even thinking about retirement. Social security then should be on every divorcing person’s checklist of topics to explore with their attorney even if it is ultimately determined not to be relevant.
Start with some basics to help prepare for such a discussion with your attorney.
1. More than a monthly payment received by an older person. When we hear the term “Social Security”, we generally think of a monthly payment received by an older individual once they retire. For purposes of this article, we are looking primarily at this monthy payment received by an older retired person as these payments relate to that person and their soon to be former spouse.
But keep in mind that Social Security includes several different programs. It provides benefits for the retired, disabled and survivors. It provides health benefits for the aged and disabled. It also encompasses unemployment insurance and public assistance or welfare. And derivative benefits are available in certain circumstances to other persons such as divorced spouses, children or stepchildren of deceased/retired/disabled workers, as well as widows and surviving divorced spouses.
2. Request your Social Security statement as soon as the possibility of divorce arises.Anyone can easily view their Social Security statement online by signing up for a “my Social Security” account at www.ssa.gov/myaccount. It is also helpful to request the Social Security statement from your spouse or coparent. Depending on your age and employment status, or that of your spouse, this statement can be helpful for two main reasons. The earnings record provides a summary of employment history and therefore a person’s financial contributions to the marriage, or their earning capacity. Sometimes the estimated monthly benefit can be used in analyzing future needs. This will also help confirm whether a person is in the minority of individuals who are not insured by Social Security, which can also be relevant to the discussion of post-divorce alimony and/or the division of assets.
3. Benefits being paid at the time of a divorce are typically considered income available for support. Social Security Benefits can therefore impact the calculation of child support and/or alimony.
4. Unlike some other states, Connecticut does not consider social security benefits as an asset. So, while a pension or 401(k) is part of the marital estate to be considered in the division of property, social security benefits payable in the future are not.
5. Defer entry of the divorce decree if the parties are close to being married for ten years. After a divorce, an ex-spouse can only receive Social Security benefits based on the worker’s benefits if the parties were married for at least ten years. The SSA enforces the ten-year rule strictly – nothing less than ten years, even nine years and 364 days, will count.
6. A divorced person meeting the other eligibility requirements may receive social security retirement benefits based upon either a) their own employment history or b) 50% of their former spouse’s employment history. This means that as part of the divorce negotiations a person needs to compare whether it is better to collect based on 100% of their own benefits, or 50% of their spouse’s benefits. The worker spouse’s benefits are not impacted by the dependent spouse’s election of benefits, and the worker spouse cannot prevent the dependent spouse from obtaining the benefits. This means that neither the parties nor the court can modify a spouse’s statutory entitlement to spousal Social Security benefits. It’s not something that needs to be negotiated in an agreement.
7. For a divorced person to receive social security benefits based upon their former spouse’s employment record: The spouse from whom benefits are derived must be eligible for benefits themselves – that is, at least age 62 and fully insured (i.e., 40 quarters of credits). But the spouse from whom benefits are derived does not need to actually be receiving benefits yet. This may be particularly important for a dependent spouse who is older than the worker spouse. And it means that the worker spouse can decide to wait and maximize his or her benefits even if the dependent spouse decides to collect as soon as possible.
8. The eligibility requirements for the dependent/recipient spouse, the one seeking social security based upon their former spouse’s benefits, are different. (1) being at least 62 years old and (2) remaining unmarried. However, if he or she does remarry, but then that marriage later ends by death, divorce or annulment, the recipient spouse becomes re-eligible for benefits based on the former spouse.
9. Derivative Social Security benefits may be available to a dependent spouse even if the worker spouse predeceases the dependent spouse’s application for benefits, and this is referred to a widow(er)’s benefit. A divorcing person considering remarriage in the near future might choose to wait to remarry until after they turn 60 so that they don’t lose eligibility to collect social security widow benefits.
10. Choose a divorce lawyer with familiarity regarding social security issues relating to divorce. They need not be a social security expert but a basic understanding of what issues to look for and when to retain the assistance of an expert is necessary to make sure you get a smart divorce financial outcome.
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