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Divorce & Social Security Benefits Settlement

By Mary Bauer ; Updated June 13, 2017

Social Security benefits are not open to negotiation in a divorce settlement. Government regulations determine the monthly payments you and/or your spouse will receive, if you are eligible. The benefits you receive have no impact on the level of benefit your spouse may receive or the amount any future spouses may obtain.

Eligibility

You qualify for Social Security benefits based on your former spouse's work record if you were married for at least 10 years, you are at least 62 years of age, you are unmarried and your former spouse is entitled to benefits. If your ex-spouse is eligible for Social Security retirement benefits but has not filed for them, you can receive benefits based on his work record if you have been divorced for at least two years.

Amount

You are entitled to 50 percent of your ex-spouse's benefit or 100 percent of your own, whichever is greater. When you reach full retirement age, you may choose between collecting your former spouse's benefit or your own. It may be advantageous to collect your ex-spouse's benefit and delay collecting retirement based on your work record because you could receive a higher payment based on higher age or more years of work when you apply for your benefits under your own work history later. If you start receiving Social Security payments while you are still employed, benefit limits will apply.

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Survivor benefits

If your ex-spouse is deceased, you can collect benefits based on her Social Security contributions starting at age 60 if you were married for at least 10 years and you have not remarried. If you are caring for a child of your deceased spouse younger than the age of 16, the 10-year minimum length of marriage does not apply. With the exception of children under your care, the benefits you receive will not affect the payments to other survivors who also qualify, such children from a separate marriage or a subsequent spouse.

Remarriage

In general, if you remarry, you are no longer eligible for benefits based on your former spouse's Social Security contributions, unless your subsequent marriage ends, through divorce, death or annulment. If you remarry after the age of 60, however, you can still collect retirement benefits based on your former spouse's work record. When you turn 62, you may be eligible for benefits under your new spouse's work record, if this amount is higher.

Offset

If you receive a federal, state or local government pension for work where you did not make contributions into the Social Security system, your benefits based on your spouse's work record may be reduced by two-thirds the amount of your monthly government pension. For example, if your monthly government pension is $900, and you are eligible for an $800 per month payment based on your former spouse's Social Security contributions, the $600 offset would reduce your monthly Social Security benefit to $200.

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