In some marriages, one spouse will earn more than the other over the duration of their marriage; as a result, the spouse receiving the larger income may end up having a larger social security benefit when they retire as compared to their spouse. Unlike other retirement assets, such as a spouse’s 401(k) savings or a pension, social security benefits are not deemed “marital assets” and therefore will not be divided in a divorce proceeding. The division of social security benefits is instead governed by the Social Security Administration.

Briefly, if you are an individual that is divorced, but your marriage lasted ten (10) years or longer, you person may receive benefits on your ex-spouse’s “social security record” if the following criteria have been met:

• You are unmarried;

• You are 62 or older;

• The benefit entitled to be received based on your work history is less than the benefit you would receive under your ex-spouse's work; and

• Your ex-spouse is entitled to Social Security retirement or disability benefits.

Even if your ex-spouse has not applied for retirement benefits, but can qualify for them, you can receive benefits on his or her record if you have been divorced for at least two years. Also, the amount that is received by you from your ex-spouse has no effect on the amount that your ex-spouse will receive once they begin collecting their social security benefits.