If you were married to your former spouse for at least 10 full, consecutive years, you are eligible to draw your Social Security (and Medicare) Benefits off of him or her. For purposes of this article, I am the ex wife drawing benefits off my ex husband, although it is the same when the gender roles are reverse. It’s also the same or same sex couples.
If our marriage lasted at least 10 years, I’m eligible to draw up to 50% of my ex spouse’s benefit. The amount I get will never be more than 50% of his benefit, but it can be a lot less if I choose to draw Social Security “early.” Early means anytime before my Full Retirement Age (FRA). Most of the nation still believes that FRA is 65, but it is between 66 and 67, depending on the year of your birth. If you were born in 1960 or thereafter, your FRA will be 67. For this article, when I say FRA I mean age 67. I can choose to apply for my spousal benefits as early as age 62. Instead of drawing 50%, I’ll get 32.5% of his amount. The longer I wait to begin Social Security, the higher my amount will be, but never more than 50% of his!
Unlike with married spouses, your ex spouse does NOT need to be drawing Social Security for you to draw a spousal benefit off him.
As long as you are at least age 62 and he is at least age 62, you can draw off of him even if he chooses to wait to start his own Social Security at 67 – 70. This is good news when former spouses are not on good terms. Your ex cannot “block” you from drawing your spousal benefit. In fact, he probably won’t even know if you are drawing off him unless he calls SSA to ask. He doesn’t have to give your permission and you don’t need his input in any way. In order to draw your benefit you call your local SSA office to start the application.
This is where is can get a little tricky. You need to provide original proof of your marriage and divorce. Many people didn’t hold onto those documents. Every state has a different department that handles these records. For example, in our home state of Indiana you can contact the Clerk of Court in the county where the marriage and divorce were issued.
If you can’t remember what county you were married in, the Indiana Courts have a marriage license public lookup. Search your state for “Vital Records” and prepare to pay a nominal fee and wait a few weeks to get the documents you need.
Pro Tip: start early. If you know you want to file to receive your benefit on January 1, submit your application to SSA 3 months in advance and if you don’t have the original documents now, start 2-3 months prior.
The reason may be that you earned more than your ex, in which case you will draw off your own work history. If you were the high earned in the relationship, your ex may be eligible to draw a spousal benefit off of you. Another reason may be that your spouse didn’t work long enough and pay into Social Security to be eligible, in which case you are not eligible either. Some self-employed people didn’t pay their taxes and only realize at retirement age that wasn’t a good strategy.
Only the SSA can share this information with you. It isn’t available in your online account. Again, you must send them proof of marriage and divorce before they will share this information.
This is a common misconception. Many divorce attorneys are unaware and mislead their clients about this too. In fact, it is impossible to give up rights to draw spousal social security in a divorce decree or a prenuptial agreement! People use the term “retirement” to mean many different things. In your divorce agreement you may have given up the right to his retirement account from his work, but you can never give up the right to draw Social Security. Remember, drawing a Spousal benefit won’t reduce the amount your ex spouse can get! It doesn’t hurt your ex or his current spouse at all.
If you remarry, you are no longer able to draw off your ex spouse. But if you later divorce your 2nd spouse, your right to draw off your 1st spouse revives. You could be married to three people and each marriage lasted 10 years. If you are single, you can CHOOSE which spouse to draw benefits off of. Follow the steps above to find out which spousal benefit would pay you the most. The fact that your husband has remarried in no way impacts your ability to draw off of him. As long as you are currently single, you are eligible.
Many assume that the amount of their Social Security will increase when they reach their FRA. For example, they are getting $1000 a month at age 62. It’s a reduced amount and they are ok with that but in the back of their mind, they assume that amount will grow when they reach FRA. This isn’t true. When you start to draw benefits, you are basically locking in that amount for the rest of your life. The good news, is that monthly payment will continue no matter how long you live. The bad news is that amount will never go up. Yes, you will get a small Cost Of Living Increase (COLA) each January, but inflation eats that up. Consider your monthly payment to be permanent as long as your ex spouse is alive. If he passes away, SSA will automatically switch you to a Survivor Benefit (100% vs 50%). In other words, you’ll be eligible to get the monthly payment your ex was receiving at the date of his death.
If you file for spousal benefits before your FRA, you can’t earn over $19,560 in 2022. This amount goes up each January. For every $2 that you earn over the annual limit, your spousal benefit will be reduced by $1. In other words, DO NOT file for your spousal benefit (or any benefit) prior to your FRA if you are going to work full time. Ideally, you can file for your spousal benefit and work a part time job as long as you don’t go over that earnings limit very much. SSA only looks at your earned income for work performed that calendar year. There are many sources of income that won’t count (interest, dividends, private pension, 401K, IRA, alimony, child support, settlements, rents, royalties, renewals and other forms of passive income).
Social Security doesn’t tax all of a worker’s income. There is an annual cap. Take Jeff Bezos who earns billions each year. He only pays Social Security FICA on the first $150,000 in 2022. This amount goes up slightly each year, but you see my point. This comes as another shock to many ex spouses!
Sylvia Gordon, aka Medicare Mama, is an expert on all things Medicare and Social Security. She is the 2nd Generation here at The Medicare Family and has served on the advisory boards of major insurance companies like UnitedHealthcare®, Cigna, and Anthem. In her free time, she can be found taking care of her animals (dogs, goats, peacocks, chickens), and reading a good book. Learn More.
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