Am I still entitled to my ex's social security benefits after our divorce?

I recently came across an excellent article on the Wall Street Journal’s website entitled, How Divorce Affects Your Social Security (Or Not). As a Dallas divorce lawyer, I am frequently asked about post-divorce entitlement to social security benefits. From the outset, it should be noted that unlike most other areas of martial property law, benefits arising from the Social Security Act are preempted by Federal Law from being characterized as community property. Because of this preemption, we have to look to federal law to determine what affect divorce plays on social security benefits.

In general, in order to be permitted to collect benefits under your ex-spouse’s earnings all five of the following must be true:

  1. You marriage was at least ten years in length;
  2. You cannot have remarried since your divorce;
  3. You are at least 62 years old;
  4. Your ex-spouse is entitled to social security benefits; and
  5. The benefits you would be entitled to based on your own work history are less than the benefits you would receive based on your ex-spouse’s work history.

So, if you meet all five of these requirements, then you’ll likely be entitled to up to 50% of your ex’s social security benefits. Note that the amount your ex is entitled to as the divorced spouse does not have any impact on the benefit amount the other spouse receives. For an "official" explanation of the above, check out the Social Security Administration’s website.

Hat tip to Kelly Greene at the Wall Street Journal for the idea behind this post.

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