Social Security Benefits After Divorce: The 10-Year Rule That Could Be Worth Thousands
If your marriage lasted at least 10 years, you may be entitled to Social Security benefits based on your ex-spouse's earnings record — even if they remarried. This is one of the most overlooked financial assets in divorce. Here's exactly how it works and what you need to do to protect your claim.
Key takeaway
Under 42 U.S.C. Section 402(b), you can collect up to 50% of your ex-spouse's full retirement benefit without reducing their benefit at all. Your ex-spouse is never notified, and their current spouse's benefits are completely unaffected. This is not “taking away” from anyone — it's a benefit you earned during the marriage.
The 10-Year Marriage Threshold: Why It Matters
Under 42 U.S.C. Section 402(b)(1), the Social Security Administration has a firm rule: to claim divorced-spouse benefits, your marriage must have lasted at least 10 years. Not 9 years and 11 months. Not “close enough.” The date on your marriage certificate to the date your divorce was finalized must span a full decade.
This is one reason divorce attorneys sometimes advise clients who are close to the 10-year mark to carefully consider timing. If you're at 9 years and 6 months, the financial value of waiting may be significant — potentially tens of thousands of dollars over your lifetime.
Eligibility requirements at a glance:
- ✓Your marriage lasted at least 10 years
- ✓You are currently unmarried (with exceptions for survivor benefits)
- ✓You are at least 62 years old
- ✓Your ex-spouse is entitled to Social Security retirement or disability benefits
- ✓The benefit you would receive based on your own work record is less than the divorced-spouse benefit
How to Claim Benefits on Your Ex-Spouse's Record
The process is more straightforward than most people think. You do not need your ex-spouse's permission, cooperation, or even knowledge. The SSA handles this independently.
Gather your documentation
You will need your marriage certificate, your final divorce decree, your ex-spouse's Social Security number (or full name, date of birth, and parents' names if you don't have the SSN), and your own identification documents.
Contact Social Security
You can apply by calling the SSA at 1-800-772-1213 or visiting your local Social Security office. As of now, you cannot apply for divorced-spouse benefits online — it must be done by phone or in person.
SSA compares your benefit options
The SSA will automatically calculate both your own retirement benefit and the divorced-spouse benefit, and pay you the higher of the two. You do not have to choose — they calculate both.
Your ex is never notified
The SSA does not contact your ex-spouse when you file a claim. They will never know you are collecting on their record, and it has zero impact on the benefits they or their current spouse receive.
Impact on Your Own Benefits
A common misconception is that claiming on your ex-spouse's record means giving up your own benefits. That is not how it works. The SSA pays you the higher of the two amounts — your own benefit or the divorced-spouse benefit.
Example scenario:
Sarah worked part-time during her 15-year marriage and earned a Social Security benefit of $900/month based on her own record. Her ex-husband's full retirement benefit is $2,800/month. As a divorced spouse, Sarah is entitled to 50% of his benefit: $1,400/month.
Because $1,400 is more than her own $900, the SSA pays Sarah $1,400/month. She receives the higher amount, not both combined. Her ex-husband still receives his full $2,800/month — nothing changes for him.
If you later earn enough to increase your own benefit above the divorced-spouse benefit, the SSA will automatically switch you to the higher amount. You are always paid the maximum you qualify for.
Remarriage and How It Changes the Rules
Remarriage is where the rules get more nuanced. Here is exactly what happens depending on the situation:
If you remarry before age 60
You generally cannot collect divorced-spouse benefits on your former partner's record. However, if your second marriage ends (through divorce, annulment, or death of your new spouse), your eligibility is restored.
If you remarry at age 60 or later
You can still collect divorced-spouse survivor benefits (if your ex has passed away) even if you remarry. This is a special exception specifically for survivor benefits.
If your ex-spouse remarries
Their remarriage has no effect on your divorced-spouse benefits. You can still claim on their record regardless of whether they remarry one, two, or five times. Multiple ex-spouses can all collect on the same worker's record simultaneously.
Survivor Benefits After Your Ex-Spouse Dies
Survivor benefits for divorced spouses are even more generous than the standard divorced-spouse benefit. Under 42 U.S.C. Section 402(e) and (f), if your ex-spouse passes away and your marriage lasted at least 10 years:
- ✓You can receive up to 100% of their benefit (compared to 50% while they're alive)
- ✓You can start collecting as early as age 60 (age 50 if you are disabled)
- ✓You can remarry at age 60 or later and still collect survivor benefits on your deceased ex-spouse's record
- ✓You may also be eligible for a one-time lump-sum death payment of $255 if you meet certain criteria
Important timing note: If you claim survivor benefits before your full retirement age, your benefit will be permanently reduced. If you wait until full retirement age, you receive the full amount. This is a critical decision that depends on your health, financial needs, and life expectancy.
One advanced strategy: if you are eligible for both your own retirement benefit and a divorced-spouse survivor benefit, you may be able to claim one first and switch to the other later to maximize your total lifetime benefits. A financial advisor experienced with Social Security can help you model these scenarios.
Strategies to Maximize Your Benefits
Delay claiming if possible
Your divorced-spouse benefit is reduced if you claim before your full retirement age (66-67 for most people, per the schedule in 42 U.S.C. Section 416(l)). Claiming at 62 means you receive only about 32.5% of your ex's benefit instead of the full 50%. If you can afford to wait, the increased monthly payment adds up significantly over your lifetime.
Watch the 10-year mark during divorce proceedings
If you are close to 10 years of marriage, talk to your divorce attorney about timing. Some spouses intentionally delay finalization to cross the 10-year threshold. The financial value over a lifetime can be $50,000 to $100,000 or more.
Do not count this benefit in divorce negotiations
Some spouses try to argue that divorced-spouse Social Security benefits should be “offset” in the property settlement. Under the Supreme Court's ruling in Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979), and the anti-assignment provision of 42 U.S.C. Section 407, Social Security benefits are not considered marital property and cannot be divided or offset in divorce. Push back if opposing counsel raises this.
Consider the impact of your own earnings
If you go back to work after divorce and increase your own earnings record, your own benefit may eventually exceed the divorced-spouse benefit. This is a good thing — you always receive the higher amount. But be aware that working while collecting early benefits may temporarily reduce your payments due to the Social Security earnings test.
Think carefully before remarrying before 60
If you are considering remarriage and are between your divorce and age 60, understand that remarriage will make you ineligible for divorced-spouse benefits. This does not mean you should not remarry — but factor it into your financial planning. If the second marriage also lasts 10 years, you may be eligible based on your new spouse's record instead.
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Legal Disclaimer: This article is for informational purposes only and does not constitute legal or financial advice. Social Security rules are complex and subject to change. For the most current information, visit ssa.gov or call the SSA at 1-800-772-1213. Always consult with a qualified financial advisor or attorney before making decisions about your benefits.
Social Security laws and benefit calculations change periodically. The information above provides general guidance but your specific benefit amounts depend on your individual earnings history, your ex-spouse's earnings history, and the rules in effect at the time you claim.