If you were married for at least 10 years, your divorce does not have to mean the end of your Social Security benefits. Federal Social Security rules allow divorced spouses to claim benefits based on their ex-spouse’s earnings record under specific conditions — and understanding these rules can significantly affect your retirement security planning during a Nevada divorce. Hauser Family Law helps Las Vegas clients incorporate Social Security benefit considerations into their overall divorce financial planning.
The 10-Year Marriage Rule
Social Security’s divorced spouse benefit (42 U.S.C. § 402(b)) allows a divorced person to claim a benefit equal to up to 50% of their ex-spouse’s full retirement benefit, provided: the marriage lasted at least 10 years; the claimant is at least 62 years old; the claimant is currently unmarried; and the ex-spouse is entitled to Social Security retirement or disability benefits. The claimant’s own work record benefit must be lower than the divorced spouse benefit for the Social Security Administration to pay the divorced spouse benefit (they will pay the higher of the two). The 10-year marriage requirement is calculated from the date of marriage to the date the divorce is final — which gives urgency to some couples who are close to the 10-year mark and considering whether to delay finalizing the divorce.
The Ex-Spouse Does Not Lose Benefits
A critical fact that surprises many clients: your ex-spouse’s benefits are NOT reduced because you claim divorced spouse benefits. The Social Security divorced spouse benefit comes from the Social Security fund — not from the ex-spouse’s individual benefit. The ex-spouse does not need to consent, know about, or agree to the divorced spouse claiming benefits on their record. The ex-spouse can be remarried, and the divorced spouse benefit can still be claimed (as long as the claimant is not remarried).
Divorced Spouse Survivor Benefits
If your ex-spouse dies, divorced spouse survivor benefits may be available under 42 U.S.C. § 402(e)/(f). A divorced surviving spouse can receive 100% of the deceased ex-spouse’s full retirement benefit (not 50% — survivor benefits are more generous than divorced spouse benefits while both are living). Survivor benefit eligibility requires: the marriage lasted at least 10 years; the claimant is at least 60 (or 50 if disabled); and the claimant has not remarried before age 60. Remarrying at age 60 or older does not affect the right to collect survivor benefits on the deceased ex-spouse’s record. Divorce attorneys who overlook survivor benefit planning in long marriages near or over 10 years are leaving significant money on the table for their clients.
SSDI Divorced Spouse Benefits
If the ex-spouse is receiving Social Security Disability Insurance (SSDI) rather than retirement benefits, the same divorced spouse benefit rules apply — up to 50% of the ex-spouse’s SSDI benefit if the marriage lasted 10+ years and the claimant is at least 62. SSDI divorced spouse benefits can be particularly valuable when the ex-spouse became disabled young, generating a high benefit amount based on their disability onset date.
The Timing Consideration: Filing Early vs. Waiting
The divorced spouse benefit, like all Social Security retirement benefits, is subject to reduction if claimed before full retirement age (currently 67 for those born after 1960). Claiming at 62 results in a reduced benefit; waiting until full retirement age receives the full divorced spouse benefit amount. Unlike individual retirement benefits, there is no additional increase for delaying claiming divorced spouse benefits beyond full retirement age (the ex-spouse’s benefit doesn’t grow just because the claimant waits, since the claimant’s benefit is derivative).
Contact Hauser Family Law — Las Vegas Divorce Attorney
Social Security benefit planning is one of many long-term financial considerations that should be addressed during your Nevada divorce, particularly in marriages approaching or exceeding 10 years. Hauser Family Law takes a comprehensive approach to property, support, and benefit planning in Las Vegas divorces. Call today for a consultation.