Qualifying spouses of retired workers collect an average of $986.68 per month in benefits, which can be a lifeline, as around 44% of the retired-age population relies on Social Security for 100% of their income. However, what happens if you devote your life to caring for your family, don’t earn a big Social Security benefit because of it, and then end up getting divorced?
Let’s say Sara stayed home with the kids for 20 years, but now she’s 65, divorced, and wants to claim Social Security benefits based on her ex-husband Jeff’s work history. The only problem? Jeff said: “No way.”
With Jeff committed to blocking her and their divorce finalized five years ago, the big question is whether Sara can collect spousal benefits anyway. The good news is, experts are clear on the answer, and the rules work in Sara’s favor.
Her ex can’t stop her from getting the benefits she deserves
The first and most important thing that Sara needs to know is that Jeff can’t prevent her from claiming Social Security benefits based on his work history.
“Your ex-husband has no say in whether you claim divorced-spouse benefits on his record,” Kristyn Carmichael, an attorney, certified divorce financial analyst, and founder of Couples Solutions Center, told Moneywise. “He isn’t asked for permission, he isn’t notified, and your claim doesn’t reduce his benefit or his current spouse’s benefit by a single dollar.”
Carmichael said that she regularly hears concerns that an ex won’t allow a Social Security claim in mediation, but these fears are unfounded because ex-spouses don’t get a vote.
“Divorced-spouse benefits are set by federal law, not by your ex or your divorce decree,” she told Moneywise. “If you meet the requirements, you can apply directly with Social Security, and he’ll never know. Even a settlement agreement can’t take that right away, because state courts can’t divide or waive Social Security benefits.”
Not only can’t her ex stop her, but Sara actually has more flexibility in getting benefits than she would if she were still married. If you’re married, you cannot claim your spousal benefits until the person whose work record they’re based on has claimed their own retirement or disability checks. This isn’t the case after divorce.
“Another very important rule is that the ex-husband does not have to be drawing Social Security yet,” explained Evan H. Farr, a certified elder law attorney at Farr Law Firm. “He must be old enough to receive Social Security, be fully eligible for Social Security retirement benefits, and the two of you must have been divorced for 2+ years.”
