In most jurisdictions, retirement, social security, and pension benefits that are earned during the marriage are considered marital assets. Therefore, in the event of divorce, retirement benefits are treated like all other marital property and are divided “fairly” between the parties unless the spouses have a different agreement (prenuptial or postnuptial agreement). 

In order to split a retirement or pension plan, a Qualified Domestic Relations Order (QDRO) must be entered during the property division. However, a QDRO is not valid if it was obtained through the use of coercion, fraud, deceit, or misrepresentation. Violations of a valid QDRO by any party may lead to legal consequences. 

Divorce and Pension Rights

Most states have held that pensions and retirement benefits earned during the marriage are marital assets subject to equitable distribution by a court. However, pension benefits that accrue (i.e. gain interest) after the parties are divorced are not considered marital property and therefore are not subject to equitable distribution

A non-employee spouse who asks for distribution of an employee spouse’s pension rights before the employee spouse retires gives up any right to increased payments in the future which might accrue due to increased age, longer service, or a higher salary.

Divorce and Social Security Benefits?

Social security is a U.S. program that provides support for the elderly or disabled. If you work, you pay a certain percentage of all your income to the government in the form of social security taxes. Once you become disabled or retire, you then receive money from the U.S. government based on how much money you paid in social security taxes.

If one spouse was the primary earner in the household, then the other spouse may be entitled to 50% of that spouse’s social security benefits. However, there are some limitations, including:

  • Age: The age of early retirement is 62, full retirement kicks in at 66 and maximizes at 70. There is an earning cap that comes into consideration, even if someone is collecting on their ex-spouse’s income and not their own. However, if someone is 62, and divorced, they are eligible to file on their ex-spouse’s work record.
  • Length of Marriage: The marriage must have lasted at least 10 years. Moreover, the couple must have been divorced for two years before either spouse will be eligible for the benefits of their ex.
  • Amount of Benefits: To be eligible for a portion of a divorced spouse’s social security, their benefits must be higher than the other spouses.
  • Surviving Spouse: In the case where a couple was married for 10 years, and one of the spouses is deceased, the surviving spouse can collect on the deceased spouse’s benefits. Benefits become available for the surviving spouse once they reach an age of 60 (or 50 if the surviving spouse is disabled).

What If I Get Remarried?

Once a spouse remarries, they will no longer be eligible to collect on their divorced spouse’s social security benefits.

Will My Divorced Spouse Know I Am Collecting on Their Income?

No, and collecting on their work record will have no effect on how much of their own benefits that ex-spouse is entitled to.

Do I Need a Lawyer for Assistance with Divorce and Retirement Benefits?

Retirement benefits are often contested during divorce proceedings. If you have any questions or concerns involving divorce and retirement benefits, it is in your best interests to hire a divorce lawyer for advice. Your attorney can help determine how divorce will affect retirement benefits, and can explain how the laws in your area work. A competent attorney can represent you during court proceedings to ensure that your interests are met.