Are you entitled to ex’s social security retirement benefits?

By Jennifer M. Paine

Attorney, Cordell & Cordell, P.C., Detroit office

Note: This is Part 2 of a three-part overview of the Social Security Act’s  divorced spouse Social Security retirement benefits. Click here to read Part 1 and click here to read Part 3.

Here is an overview of the Social Security Act’s divorced spouse Social Security retirement benefits to consider as you contemplate divorce, negotiate your settlement, or select the date to make your decree effective.

In this part, we’ll address two questions:

  • Am I eligible for divorce spouse retirement benefits?
  • How are those benefits calculated?

Am I eligible for divorced spouse retirement benefits?

Not every ex is entitled to divorced spouse retirement benefits. The circumstances are narrow and subject to change as our national deficit skyrockets and congressmen and congresswomen get to work revising the laws. You should always consult a Social Security lawyer for specific information. In general, however, a divorced spouse may be entitled to these benefits if he:

(1) was validly married to the worker ex-spouse, who is insured under the Social Security Act, for at least ten years;

(2) is unmarried at the time of receiving the benefits;

(3) is at least 62 years old; and

(4) is not entitled to Social Security retirement or disability benefits equal to or greater than the ex-spouse’s full benefit.

Additionally, if the spouses have been divorced for at least two years, he is eligible to receive the benefits even if the insured worker ex-spouse has not filed for retirement benefits. See 42 USC 402(b).

For benefit months after December 1990, applicants who were not validly married may qualify under the first requirement if they were “deemed married.” To be deemed married, the applicant and his ex-significant other must have gone through a wedding ceremony that would have resulted in a valid marriage but for a legal impediment, must have believed in good faith they were married, and must have been living in the same household as husband and wife. See 42 USC § 416(h).


How are divorced spouse retirement benefits calculated?

The successful applicant will receive a monthly benefit equal to one-half of the worker ex-spouse’s primary insurance amount while the worker is living and a benefit equal to the worker’s full primary insurance amount after the worker’s death. The primary insurance amount is the amount of benefits the worker is entitled to based on his or her Social Security earnings record. With limited exceptions, the Social Security Administration calculates the amount with the average indexed monthly earnings for workers who reach age 62 after 1978 or become disabled or die before age 62 and the average monthly wage for individuals who reach age 62, become disabled or die before 1979. See 20 CFR 404.210, .220.

Each year, as tax season approaches, you will receive a booklet from the Social Security Administration that indicates your earnings history and the benefits you may receive based on that history. You should keep this booklet in a safe place: it contains information about the various Social Security benefits, for one thing, and, more importantly, it will help you and your attorney chart your earnings history if child support and spousal support become issues in your divorce.

Note: This is Part 2 of a three-part overview of the Social Security Act’s  divorced spouse Social Security retirement benefits. Click here to read Part 1 and click here to read Part 3.


Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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