The Edmunds Law Firm, a San Diego divorce and family law firm, advises their clients on how to properly divide equity and assets. One issue, in particular, is how social security benefits are distributed in a divorce. This can be a particularly difficult issue, as these funds hold monetary value initially intended to cover the cost of retirement for both individuals.

When it comes time to divide assets in a divorce, either through litigation or mediation, some couples may not agree on how to divide a retirement fund. However, with private accounts, this is usually handled through equitable distribution, meaning each spouse would get 50% of the account balance. However, many older clients may not have much in the form of a private retirement account at all and may be funding retirement only in the form of expected social security.

The issue with social security and divorce is that the United States Government prohibits the consideration of Social Security Benefits in an equitable distribution case. Social security benefits are non-negotiable in a divorce case and cannot be litigated. Luckily, for those whose spouse was the main breadwinner, after 10 years of marriage, they become entitled to 50% of their ex’s social security benefits. There are quite a few points of interest involving divorce proceedings and social security, so let’s take a moment to look at some of the most frequently asked questions.

Who is eligible for Social Security benefits?

For those born in 1937 or before, full retirement age for Social Security is 65. For those born in 1960 or after, it’s 67. For those born in between these years, there is a sliding scale which allows you to begin accessing Social Security retirement benefits at age 62, but you will lock in a payment stream that is about 30 percent lower than if you wait until your full retirement age.

Is my spouse eligible to collect my Social Security benefits?

If you have been married for at least 10 years before your divorce, you can collect retirement benefits on your former spouse’s Social Security record if you are at least age 62 and if your former spouse is entitled to or receiving benefits. This is true whether your ex remarries or not. However, if you remarry, you are no longer eligible.

How much of my Social Security benefits can my ex-spouse receive?

You are eligible to receive 50% of your ex’s Social Security benefit or your own benefit based on your employment history, whichever is the greater of the two.

If I remarry, can I still collect Social Security benefits from my ex-spouse?

If you remarry, you generally cannot collect benefits on your ex’s record unless your later marriage ends (whether by death, divorce, or annulment).

What happens if my ex-spouse dies?

If your divorced spouse dies, you can receive 100 percent of his benefits as a widow/widower if the marriage lasted 10 years or more and you are not remarried.

Are Social Security benefits taxable?

Up to 85% of Social Security benefits can be taxable, depending on your income bracket.

One benefit of Social Security is that even if you collect benefits off your ex’s social security record, this does not impact their benefit in any way, so this issue is eliminated as a negotiation point in divorce. In fact, your spouse doesn’t even have to know when you start receiving benefits. Check out the Social Security Administration’s Web site for more information at

Questions? Contact The Edmunds Law Firm Today

For more information on how to handle distribution of your assets in a divorce or separation, call the San Diego divorce lawyers at The Edmunds Law Firm. Fill out the contact form on our website to get started.