A “gray divorce” generally refers to spouses divorcing later in life, usually after decades of marriage. A common question that comes up within this group of individuals pertains to how a divorce may impact a spouse’s social security retirement benefits. Pennsylvania Courts consider certain factors when determining how marital assets should be divided and if an alimony award is necessary.

Under both analyses, the income and sources of income for both spouses are relevant. In cases involving one or two spouses that have reached or are close to retirement age, it is important to understand the implications of divorce on social security benefits when helping your client plan ahead and negotiate a resolution.

Both married and divorced spouses have the ability to apply for and receive a benefit based on the other spouse’s work record assuming the other spouse is eligible for social security. In the event of a divorce, the lower wage-earning spouse may be able to receive an increased benefit based on the higher wager earner’s work history when several conditions are met:

• The higher wage earner must be entitled to collect social security benefits; they do not have to be currently collecting for the lower wage earner to apply
• The marriage lasted at least 10 years and the parties have been divorced for at least 2 years
• The lower wage earner is at least 62
• The lower wage earner is unmarried

If the lower wage earner is entitled to a benefit based on their own earnings, and it is less than their spouse’s record, they will receive the higher of the two benefits but not both. It is important to note the following, which are sometimes misunderstood when discussing social security benefits and divorces:

• If a former spouse reaches full retirement age and applies for their benefit based on their ex-spouse’s earnings, then their benefit will be equal to half of their ex-spouse’s full retirement amount
• The benefit received by the former spouse does not impact the benefits of their ex-spouse, or their ex-spouse’s new spouse

It is important to also distinguish social security retirement benefits from other types of retirement. Unlike a 401(k) or IRA, which are often considered marital assets to be divided between spouses, social security benefits are not and cannot be divided. However, it is important to note that in cases involving two retired spouses on limited and/or fixed incomes, who were married for a long duration, the family court may recommend that social security benefits be equalized among spouses which requires the spouse with the higher benefit to pay a sum to the other spouse indefinitely.