Social Security & How it is Divided During a Divorce

Social security benefits in Missouri

Social Security benefits represent a critical financial consideration for divorcing couples, particularly those approaching or in retirement. However, contrary to what many people assume, Social Security benefits cannot be directly divided between spouses during a Missouri divorce proceeding. This fundamental limitation stems from federal law, which supersedes state property division rules and creates a unique situation where these benefits are treated differently from other marital assets. Understanding how Social Security works in the context of Missouri divorces requires examining both the federal regulations that govern benefit distribution and the state’s equitable distribution framework that applies to other marital property.

Am I Required to Split my Social Security Benefits During a Divorce in Missouri?

Missouri courts have no authority to divide Social Security benefits during divorce proceedings. Federal law explicitly prohibits Social Security benefits from being distributed in a divorce settlement in any way other than how the Social Security Administration would naturally issue them.

This means that even though Missouri follows an equitable distribution approach for most marital property, where courts divide assets based on what is fair and reasonable rather than necessarily equal, Social Security benefits remain entirely outside this framework.

Any provision in a divorce decree that attempts to divide or redistribute Social Security benefits would be rendered invalid under federal law. This creates a clear distinction between Social Security and other retirement assets, such as 401(k) plans or pensions, which can be divided through Qualified Domestic Relations Orders (QDROs) during divorce proceedings.

The federal government maintains exclusive control over Social Security benefit distribution, ensuring that state courts cannot interfere with these determinations regardless of their equitable distribution principles.

How Social Security Impacts Settlement Negotiations

While Social Security benefits cannot be formally divided, they should still be factored into settlement negotiations between divorcing spouses. When there is a significant difference in income between spouses, there could be a considerable gap in the Social Security benefits each would receive based on their own work records.

Experienced local divorce attorneys often consider these future benefit disparities when negotiating the division of other marital assets, potentially using them to justify unequal distribution of divisible property to compensate for the inability to share Social Security benefits.

This consideration becomes particularly important in marriages where one spouse had limited workforce participation or significantly lower earnings due to homemaking responsibilities or career sacrifices made for the family’s benefit. Missouri courts already recognize the contribution of a spouse as a homemaker when dividing marital property, and the future Social Security benefit disparity can reinforce arguments for a more favorable property distribution to the lower-earning spouse.

Missouri Law Prohibits Division of Social Security Benefits

Under Missouri state law, courts are explicitly prohibited from dividing Social Security benefits in divorce proceedings. The law clearly states that no court shall divide or set aside any federal old-age, survivors or disability insurance benefit provided to any party pursuant to the federal Social Security Act in any proceeding for dissolution of marriage.

This prohibition is not unique to Missouri—it’s actually mandated by federal law. The Social Security Act creates a broad bar against the use of legal process to reach Social Security benefits, stating that these benefits “shall not be transferable or assignable” and are not subject to “execution, levy, attachment, garnishment, or other legal process”.

Why Social Security Benefits Are Protected

The federal protection of Social Security benefits serves several important purposes. First, these benefits are designed to provide a basic safety net for retirees, disabled individuals, and survivors. Allowing them to be divided in divorce proceedings could undermine this fundamental purpose. Second, Social Security operates as a federal insurance program with specific eligibility criteria and benefit formulas that would be disrupted if state courts could redistribute benefits.

The Missouri Court of Appeals has consistently upheld this principle. For example, the court has affirmed that Social Security disability benefits are not marital property and cannot be divided in divorce proceedings. Similarly, the Missouri Supreme Court has held that teacher retirement benefits that substitute for Social Security benefits are also non-divisible.

How Social Security Differs from Other Retirement Benefits

It’s important to understand that while Social Security benefits cannot be divided, other retirement benefits accumulated during marriage generally can be divided in Missouri divorces. Under Missouri’s equitable distribution laws, retirement accounts such as 401(k)s, IRAs, pensions, and employer-sponsored retirement plans are typically considered marital property if contributions were made during the marriage.

These other retirement benefits can be divided through Qualified Domestic Relations Orders (QDROs) or similar court orders that direct plan administrators on how to distribute benefits between divorcing spouses. This creates an important distinction that divorcing couples should understand: while your spouse’s 401(k) may be subject to division, their Social Security benefits are not.

The Impact on Divorce Settlement Negotiations

Although Social Security benefits cannot be directly divided, they should still be considered during divorce settlement negotiations. If there’s a significant disparity in the Social Security benefits each spouse will receive based on their individual work histories, this factor may influence how other marital assets are divided.

For example, if one spouse has substantially higher projected Social Security benefits due to higher lifetime earnings, the court might award a larger share of other marital assets to the spouse with lower expected Social Security benefits to achieve overall fairness in the property division. This indirect consideration helps ensure that the total retirement picture is taken into account during the divorce process.

Divorced Spouse Social Security Benefits: Your Rights After Divorce

While divorce courts cannot divide Social Security benefits, divorce doesn’t necessarily end your connection to your ex-spouse’s Social Security record. Under federal law, you may be eligible to receive Social Security benefits based on your former spouse’s work record, even after divorce.

Eligibility Requirements for Divorced Spouse Benefits

To qualify for Social Security benefits based on your ex-spouse’s record, you must meet several specific criteria:

• Marriage Duration: Your marriage must have lasted at least 10 consecutive years before the divorce was finalized. This is known as the “10-year rule,” and the time period cannot be combined from multiple marriages to the same person.
• Age Requirements: You must be at least 62 years old to begin receiving divorced spouse benefits.
• Marital Status: You must be currently unmarried. If you remarry, you generally lose eligibility for benefits based on your ex-spouse’s record (though there are exceptions if your subsequent marriage ends).
• Benefit Comparison: The benefit you would receive based on your ex-spouse’s record must be higher than what you would receive based on your own work history.
• Ex-Spouse’s Eligibility: Your ex-spouse must be entitled to Social Security retirement or disability benefits. However, they don’t need to have actually applied for benefits yet if they’re eligible.
• Divorce Duration: You must have been divorced for at least two continuous years, unless your ex-spouse has already begun receiving their Social Security benefits.

How Much Divorced Spouse Benefits Can You Receive?

If you qualify for divorced spouse benefits, you can receive up to 50% of your ex-spouse’s full retirement benefit (their Primary Insurance Amount). This is the amount they would receive if they claimed benefits at their full retirement age, regardless of when they actually claim.

Importantly, your receipt of divorced spouse benefits does not reduce your ex-spouse’s benefits or affect their current spouse’s potential benefits. The Social Security Administration calculates these benefits separately, so multiple people can receive benefits based on one person’s work record without diminishing anyone else’s payments.

The Divorced Spouse Benefits Application Process

When you’re ready to apply for divorced spouse benefits, you have several options:

• Online Application: You can apply through the Social Security Administration’s website.
• Phone Application: Call the SSA at 1-800-772-1213 (TTY 1-800-325-0778) to schedule an appointment.
• In-Person Application: Visit your local Social Security office to apply in person.

Required Information and Documentation

When applying for divorced spouse benefits, you’ll need to provide:

• Your Social Security number and date of birth
• Your ex-spouse’s Social Security number and date of birth
• Marriage certificate
• Final divorce decree
• Information about any subsequent marriages
• Your bank account information for direct deposit

Survivor Benefits for Divorced Spouses

In addition to divorced spouse benefits, you may also be eligible for survivor benefits if your ex-spouse dies. These benefits can be even more substantial than regular divorced spouse benefits.

Survivor Benefit Eligibility

To qualify for survivor benefits as a divorced spouse:

• Your marriage must have lasted at least 10 years
• You must be at least 60 years old (or 50 if disabled)
• You must be currently unmarried (though you can remarry after age 60 and still receive benefits)

Survivor Benefit Amounts

Divorced spouse survivor benefits can equal up to 100% of your deceased ex-spouse’s benefit amount, making them potentially much more valuable than the 50% available through regular divorced spouse benefits.

Strategic Considerations for Divorcing Couples

Understanding the Social Security implications of divorce can influence important strategic decisions during the divorce process:

Timing of Divorce

If you’re approaching your 10th wedding anniversary and your spouse has significantly higher lifetime earnings, you might want to consider delaying the divorce until after you reach the 10-year milestone. This could make the difference between having access to divorced spouse benefits and having no claim to benefits based on your spouse’s record.

Long-Term Financial Planning

When negotiating your divorce settlement, consider your long-term retirement security. If you’ll have limited Social Security benefits based on your own work record, you might want to pursue a larger share of other marital assets or seek spousal support to help bridge the gap in retirement income.

Career and Work Decisions

If you’re eligible for divorced spouse benefits, understand how your own work and benefit claiming decisions might affect your total Social Security income. In some cases, it might make sense to delay claiming your own benefits to allow them to grow, while in other situations, claiming divorced spouse benefits earlier might be more advantageous.

Common Misconceptions About Social Security and Divorce

Several misconceptions persist about Social Security benefits and divorce that are important to clarify:

• Myth: “I need to notify my ex-spouse when I claim benefits on their record.”Reality: You do not need to inform your ex-spouse when you apply for divorced spouse benefits, and the Social Security Administration will not notify them.
• Myth: “Divorce agreements can waive rights to Social Security benefits.”Reality: Even if your divorce decree includes language waiving rights to Social Security benefits, such provisions are unenforceable under federal law. Your rights to potential divorced spouse benefits cannot be waived.
• Myth: “If my ex-spouse remarries, I lose my rights to their Social Security.”Reality: Your ex-spouse’s remarriage does not affect your eligibility for divorced spouse benefits. However, your own remarriage would generally end your eligibility.
• Myth: “I can only collect either my own benefits or divorced spouse benefits, not both.”Reality: You cannot “double-dip,” but you will receive the higher of the two benefit amounts. If your divorced spouse benefit is higher than your own, you’ll receive a combination that equals the higher amount.

The Role of Social Security in Overall Retirement Planning

While Social Security benefits cannot be divided in divorce, they remain a crucial component of retirement planning for divorced individuals. For many people, Social Security represents a significant portion of their retirement income, making it essential to understand and maximize these benefits.

Maximizing Your Social Security Benefits

Whether you’re planning to claim benefits on your own record or as a divorced spouse, timing can significantly impact your total lifetime benefits. Benefits increase for each year you delay claiming between your full retirement age and age 70, though this delayed retirement credit only applies to benefits based on your own work record, not to divorced spouse benefits.

In divorce proceedings, understanding your potential Social Security benefits can help you make informed decisions about how to divide other marital assets. If you expect limited Social Security income, you might prioritize retaining a larger share of retirement accounts or other income-producing assets.

Working with Legal and Financial Professionals

Given the complexity of Social Security rules and their interaction with divorce law, it’s crucial to work with knowledgeable professionals during your divorce:

Family Law Attorneys

An experienced Missouri family law attorney can help you understand how Social Security considerations should factor into your divorce strategy and ensure that your settlement adequately addresses your long-term financial security.

Financial Advisors

A financial advisor familiar with Social Security rules can help you develop a comprehensive retirement plan that takes into account your potential divorced spouse benefits and coordinates them with your other retirement resources.

Social Security Administration

Don’t hesitate to contact the Social Security Administration directly for information about your specific situation. They can provide estimates of your potential benefits and help you understand your options.

Getting help from a St. Louis divorce lawyer

While Social Security benefits cannot be divided directly in a Missouri divorce, understanding the rules surrounding these benefits is crucial for anyone going through divorce. The inability to divide Social Security benefits in court doesn’t mean they’re irrelevant to your divorce—quite the opposite. These benefits may represent a significant part of your retirement income, and the rules governing divorced spouse benefits can provide important financial security.

The key takeaways for divorcing couples in Missouri are:

1. Social Security benefits are protected by federal law and cannot be divided by state divorce courts.
2. Divorced spouse benefits may be available if you meet specific eligibility requirements, including the 10-year marriage rule.
3. Timing of your divorce can affect your long-term benefit eligibility.
4. Social Security considerations should factor into settlement negotiations even though the benefits themselves cannot be divided.
5. Professional guidance is essential for navigating these complex rules and developing an appropriate strategy.

If you’re going through a divorce in Missouri, don’t overlook the importance of Social Security in your long-term financial planning. While these benefits may seem distant, the decisions you make during your divorce can significantly impact your financial security in retirement. Take the time to understand your rights and options, and consider how Social Security fits into your overall divorce strategy and retirement planning.

For personalized guidance on how Social Security benefits might affect your specific divorce situation, consult with an experienced Missouri family law attorney who can help you navigate both state property division laws and federal Social Security regulations to protect your financial future.