Social Security and Divorce: What Retiring Spouses Need to Understand

Divorce later in life often forces people to confront financial realities they never anticipated. One of the most commonly misunderstood issues is how Social Security works after divorce. Many people assume it will be divided like a pension or factored into a property settlement. It is not.

Social Security is governed entirely by federal law. State courts, including Oregon divorce courts, have no authority to divide, assign, or offset Social Security benefits in a judgment. This single fact drives nearly every retirement-related surprise divorced spouses encounter.

Understanding how Social Security actually works after divorce is essential for anyone approaching retirement age.

Social Security Is Not a Divisible Asset

Unlike retirement accounts such as 401(k)s or pensions, Social Security benefits are not marital property. A divorce court cannot award one spouse a share of the other’s Social Security benefits, even in a long-term marriage.

This often feels counterintuitive, especially where one spouse spent years out of the workforce supporting the family or the other spouse’s career. However, federal law preempts state family law in this area. No language in a divorce decree can change how Social Security benefits are calculated or paid.

How Divorced Spouse Benefits Actually Work

Although Social Security is not divided, federal law does provide a limited safety net for divorced spouses.

A person who was married for at least ten years may qualify for Social Security benefits based on an ex-spouse’s earnings record. This is not a transfer of benefits. Instead, it is a separate entitlement created by statute and administered directly by the Social Security Administration.

To qualify, the divorced spouse must be at least 62 years old, currently unmarried, and entitled to a benefit that is lower than what would be available on the former spouse’s record. The former spouse must also be eligible for Social Security retirement benefits.

If those conditions are met, Social Security pays the divorced spouse the higher of their own earned benefit or a benefit equal to one-half of the ex-spouse’s full retirement benefit.

This structure matters. Many people mistakenly believe they will receive the same benefit amount as their former spouse. That is incorrect. The maximum divorced spouse benefit is capped at 50 percent of the ex-spouse’s benefit, and it functions as a supplement, not an additional payment layered on top of the recipient’s own benefit.

Importantly, claiming a divorced spouse benefit does not reduce or affect the ex-spouse’s benefit in any way, and the ex-spouse is not notified when the benefit is claimed.

Survivor Benefits Are a Separate and Often Larger Right

Different rules apply if a former spouse dies.

A divorced spouse who was married for at least ten years may be entitled to survivor benefits based on the deceased ex-spouse’s earnings record. In contrast to divorced spouse benefits, survivor benefits can equal up to 100 percent of the deceased ex-spouse’s benefit.

Survivor benefits replace the recipient’s own benefit if the survivor benefit is higher. They are not combined. Eligibility generally begins at age 60, or age 50 if the surviving ex-spouse is disabled.

For many divorced individuals, survivor benefits are the most financially significant Social Security benefit they will ever receive. Yet they are frequently overlooked in divorce planning because they only come into play years later.

Social Security Does Not Automatically Replace Spousal Support

Another common misconception is that Social Security eligibility ends alimony.

In Oregon, spousal support is governed by state law, and Social Security is governed by federal law. The two systems do not automatically substitute for one another.

When a paying spouse reaches retirement age, they may seek to modify or terminate spousal support. Courts look at whether the retirement is reasonable, whether it was made in good faith, and whether continuing or ending support would cause undue hardship.

The mere fact that a recipient spouse can collect Social Security does not automatically justify terminating support. In long-term marriages, particularly where one spouse experienced a lasting economic disadvantage, Social Security benefits are often insufficient to replace spousal support.

The Lasting Impact of Time Out of the Workforce

Social Security is calculated based on lifetime earnings. Years spent out of the workforce reduce both earnings history and retirement benefits.

For spouses who spent significant time as homemakers or caregivers, divorce later in life can expose a permanent financial gap. Divorced spouse and survivor benefits are intended to soften that impact, but they rarely make the parties economically equal.

This reality is why Social Security planning should never be an afterthought in gray divorce cases. By the time retirement arrives, the rules are fixed and the options are limited.

Why Timing and Planning Matter

Decisions made during divorce often echo decades later. When retirement is on the horizon, issues such as claiming age, spousal support duration, and realistic post-retirement income need to be evaluated together.

Social Security rules are rigid. Divorce outcomes are not. The interaction between the two is where many people get caught off guard.

Speaking With an Oregon Divorce Attorney Before Retirement Decisions

If you are divorcing or already divorced and approaching retirement, it is critical to understand how Social Security fits into the broader financial picture. These issues are rarely addressed adequately once retirement begins.

At Romano Law, we advise clients on divorce and spousal support with an eye toward long-term financial stability, not just the immediate settlement. Retirement planning, Social Security eligibility, and support obligations must be evaluated together to avoid irreversible mistakes.