Divorce and Social Security: What You Should Know

Last week, I wrote about the importance of giving serious thought to when and how to begin collecting Social Security retirement benefits.

The column generated a whole lot more feedback and questions than I would have ever imagined. The questions all focused on ways to maximize Social Security benefits under a variety of circumstances.

By far, the leading category of questions came from divorced women who wondered about collecting Social Security based on the earnings records of their former husbands. Given the predominance of this category, I decided this week to address a typical question I received on the divorce issue.

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Q: I was married for almost 25 years. My husband divorced me to marry another. I was told by my lawyer that because we were married for more than 10 years, I could collect against his Social Security because the amount would be higher than mine. He has been married to his second wife for more than 10 years, and he is still living. If I collect against his (Social Security earnings record) and he dies, will I then be able to collect on what I have earned over the years, or am I out of luck? Would it be best for me to just forget about his? -- J.G., Milford, Ohio

J.G., you absolutely should be looking at your former husband's Social Security earnings record when planning for your own retirement. In fact, it's a critical issue that should be considered before the divorce paperwork is finalized.

While you should always check with your personal attorney for specific advice on your individual case, here are some general points to keep in mind: Let me start by explaining the basic rules about Social Security benefits, as it relates to divorced couples. The basic rule is that any time a marriage lasts 10 years or more, the divorced spouse with the lower earnings record can collect retirement benefits based upon the record of the higher-earning spouse.

Four Key Qualifications to Collect

This is true regardless of gender, meaning a man can collect against his former wife's earnings record if she collected a higher salary over their working lives. In most cases, however, it is the former wife collecting against the ex-husband's earnings record.

In addition to the required 10 years of marriage, there are four key qualifications to collect divorced spouse benefits:

The person seeking to collect must not have remarried.

This person must be 62 or older.

The benefit this person would collect based on his or her own earnings record must be smaller than what they would collect on their former spouse's earnings history.

And the ex-spouse must be entitled to Social Security retirement or disability benefits on their own.

The benefits collected by a divorced spouse does not reduce the benefits received by the other spouse.

If you remarry, you generally cannot collect on your former spouse's record unless the later marriage ends by death, divorce or annulment.

In your case, J.G., your 25 years of marriage would more than qualify you for a divorced spouse's benefit. And based on the wording of your question, I'm assuming you have not remarried and, therefore, are not disqualified on that count.

One thing to keep in mind is that if your ex-husband has not yet applied for retirement benefits himself but does qualify, you must have been divorced from him for at least two years before you can begin collecting against his earnings record. In this case, J.G., that's not an issue because you've divorced for more than 10 years.

Finally, J.G., you ask what happens if your ex-husband dies? Are you out of luck?

No, you will qualify for survivor benefits as a divorced spouse, just as if you had been married to him at the time. And you always retain the right to the benefits you earned based on your own work history. You don't give those up even if you collect against your ex-husband's record. This could be an issue if you ever remarry yourself.

In fact, you also can begin by collecting Social Security through a divorced spouse benefit first and delay receiving your own retirement benefits until a later date. This could mean a higher benefit for you down the road by qualifying for delayed retirement credits that accumulate up until age 70.

And any retirement or survivor benefits you collect against your ex-husband's record will have no impact on the benefits paid to his second wife. So there is no need to worry about Social Security triggering any kind of dispute with your ex or his second wife.

For anyone considering a divorce, the critical thing to understand is that the marriage must have lasted at least 10 years to qualify for divorced spouse benefits.

In fact, if you're contemplating divorce or in the midst of one, I would give serious consideration to holding off finalizing the paperwork if you're anywhere close to reaching the 10-year threshold.

This is particularly true for anyone who stayed at home to care for a child and you are unlikely to be able to match your spouse's salary after the divorce.

For more information about Social Security benefits for divorced spouses, visit www.socialsecurity.gov and look for the "Marriage, Divorce, Name Changes" section under the "Other Useful Links" drop-down menu on the right side of the home page.

This work is the opinion of the columnist and in no way reflects the opinion of ABC News.

David McPherson is founder and principal of Four Ponds Financial Planning in Falmouth, Mass. He previously worked as a financial writer and editor for The Providence Journal in Rhode Island. He is a member of the Garrett Planning Network, whose members provide financial advice to clients on an hourly, as-needed basis. Contact McPherson at david@fourpondsfinancial.com.

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