Social Security in a Divorce

Many women are under the impression that they gave up their right to draw Social Security spousal benefits in their divorce agreement. This is impossible. It doesn’t matter what they agreed to in their divorce papers – you can’t just give up your federal right to claim Social Security. There is no state contract you can sign that will be enforceable. Federal law trumps state contract law. 

The problem is most women trust their divorce attorney – crazy, I know! Why would her attorney have urged her to sign an agreement that isn’t enforceable? Most divorce attorneys simple do not understand Social Security law. To be eligible to draw Social Security spousal benefits off a prior marriage, that marriage had to have lasted ten full years. I often hear from women whose divorce was final at 9 years and 11 months. Clearly, the divorce attorney was unaware that his client was oh so close to qualifying for retirement benefits if only he had waited to finalized the divorce a month later. 

When people split up, they’re often divvying up their ex’s retirement savings, which can be a big deal. But here’s the kicker: during the whole divorce negotiation, folks throw around the word “retirement” like it covers everything, including Social Security. Here’s the reality – hardly anyone actually talks about Social Security directly. Even if a lawyer tries to spell out that you’re giving up rights to your ex’s Social Security, it’s basically just words to spook you. Bottom line? Those words don’t really mean much in the legal arena.


To Draw Spousal Social Security Benefits Off an Ex Spouse You Must Meet the Following Qualifications:

1. Your marriage must have lasted a full ten years. Look at the date your judge signed your decree and ignore the date you filed for divorce.
2. You must be single at time of filing for benefits. You could have a second marriage after your first marriage, but as long as you are single at time of filing, you qualify.
3. To draw off your former spouse, you and he must be at least age 62.
4. You too must be at least age 62, unless you are disabled or your ex-spouse is dead.
5. He never has to draw his own benefits in order for you to draw off of him (those rules for married couples are different).
6. You must be divorced at least two years. This rule doesn’t apply if you ex is already receiving his benefits.
7. Half of your spouse’s benefit must be more than all of your own benefit. If you were the higher earner, he may be eligible to draw off of you and not vice versa. If you both earned about similar incomes, you’ll each be able to draw off your own work record.
8. Benefits can be filed while your ex is alive or after he dies. Many women were unaware they could file for Widow benefits on a long-ago ex-spouse and are elated to find this out!

Now That Your Interest is Piqued

You might wonder how much your ex is eligible to draw in benefits—and only the Social Security Administration can tell you that. They need original (or certified copies) marriage and divorce documents before they can share this private information with you. Since you have to mail in the documents or get a face-to-face appointment, this can take some time.

Maybe I don’t need to say this since I think it goes without saying, but your ex must qualify for Social Security. If he was self employed and never paid his FICA taxes, or was always paid under the table, he may not qualify for Social Security.

I’ve had women tell me they don’t want to draw spousal benefits because they have a great relationship with their ex, his new wife, the kids etc and do not want to anger anyone. Its a very kind thought, but that’s not how these benefits work. Drawing benefits off your former spouse’s work history, doesn’t reduce his own retirement. Nor does it impact his new spouse. He never even needs to know if you’re drawing from his. Both the current spouse and former spouses are eligible to draw up to 50% of the husband’s amount. How is this possible? You will not be actually drawing money out of your ex-husband’s retirement account. Social Security is a trust fund. You are eligible for funds based on his amount.


The Bottom Line

This seems to be another reason that Social Security has a problem but it is a generational issue. Younger women are less likely to be homemakers and never enter the work force, than prior generations. As women accrue their own earnings history, they are likely to draw their own benefits. One of my best friends is a stay at home dad. If he meets all of the other requirements, he’ll be able to draw off his spouse/ex spouse. Social Security rules are gender neutral. I use husband/wife, but you can substitute lower wage earner/higher wage earner.


Sylvia Gordon and her sister, Rebecca, run Gordon Marketing, one of the nation’s largest Medicare FMO/NMA offices. They have a team of over 100 that train and support independent insurance agents in all 50 states. You can find Sylvia’s weekly posts on LinkedIn and the sisters' Youtube channel posts 2 training videos each week. Contact Sylvia at or 800-388-8342.


Looking For A New FMO Home? Let Us Be Your 2022 Back Office!

Ask About Marketing Money (to Grow Your Business), Win Trips, & More!  Learn more…