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. No matter what you signed in your divorce, you can’t give up your federal rights to draw 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. 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. If they did, they wouldn’t let their clients divorce at nine years and 11 months. To be eligible to draw Social Security spousal benefits off a prior marriage, that marriage had to have lasted 10 full years. I often hear from women whose divorce was final at nine 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.
In a divorce, your husband’s retirement is often one of the largest assets being divided. When negotiating the divorce, the parties use the words “retirement” when they more specifically mean his pension or 401(k) account. Social Security is rarely mentioned; everyone just assumes that the word “retirement” includes Social Security benefits. Even if an attorney had specified that you gave up all rights to your former spouse’s Social Security – it still wouldn’t be enforceable. They are words meant to scare you.
To draw Spousal Social Security benefits off an ex-spouse, here is how you qualify:
- Your marriage must have lasted a full 10 years. Look at the date your judge signed your decree and ignore the date you filed for divorce.
- 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.
- To draw off your former spouse, you and he must be at least age 62.
- You too must be at least age 62, unless you are disabled or your ex-spouse is dead.
- He never has to draw his own benefits in order for you to draw off of him (those rules for married couples are different).
- You must be divorced at least two years. This rule doesn’t apply if you ex is already receiving his benefits.
- 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.
- 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 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.
I think it goes without saying that 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. But the apple cart isn’t upset at all. Drawing benefits off your former spouse’s work history doesn’t reduce his own retirement nor does it impact his new spouse. Both the current spouse and former spouses are eligible to draw up to 50 percent of the husband’s amount.
How is this possible? Social Security is a trust fund. You will not be actually drawing money out of your ex-husband’s retirement account. You are eligible for funds based on his amount.
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 women of 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. Social Security rules are gender neutral. I use husband/wife, but you can substitute lower wage earner/higher wage earner.
Sylvia Gordon is co-founder of The Medicare Family, headquartered in Noblesville, where she educates thousands on Medicare and Social Security in all 50 states. You can learn more at themedicarefamily.com.