For the most part, federal law preempts state law in respect to payment of federal benefits under the Social Security Act and for military pensions. Because the two programs were developed on different tracks for different purposes, the provisions affecting divorced spouses are very different.

Social Security Benefits

Social Security benefits are paid based upon the federal Social Security law, not state law. A divorced spouse is someone who was married to a wage earner for a minimum of 10 years. A surviving divorced wife is one who was married to a wage earner for a minimum of 10 years and the wage earner is now deceased. There is no need to insert language in a divorce decree or a settlement agreement for the divorced spouse to be entitled to benefits.

Benefits for a Divorced Spouse

Under the Social Security Act, an unmarried divorced spouse is entitled to receive Social Security benefits based on the account of the former wage earner if the marriage lasted at least 10 years and the other criteria for obtaining a benefit are met:

  • The divorced spouse has attained age 62.
  • The wage earner is either receiving a benefit or is eligible to receive a benefit.
  • The benefit to which the divorced spouse is entitled to receive on her own account is less than one-half of the amount she would be eligible to receive on the wage-earner's account.
  • The divorced spouse has filed an application for benefits.

If the divorced spouse elects to receive a benefit prior to the date she would be eligible for a full benefit, the benefit, whether on her own account or as a divorced wife, will be reduced for age. With certain limited exceptions, these benefits are not available if the spouse remarries someone other than the wage earner. However, the divorced spouse may become eligible again if the subsequent marriage ends.

A divorced wife is not entitled to receive benefits based on the account of a former spouse (wage earner ) while married to anyone other than the former spouse. Once the subsequent marriage terminates, by either death of the new spouse or divorce, the divorce spouse, if eligible for Social Security benefits, should check with the Social Security Administration for a determination on which account the divorced spouse can receive the highest benefits.

Surviving Divorced Spouse

An unmarried surviving divorced spouse is entitled to receive Social security benefits based upon the account of a deceased wage earner, if the marriage lasted at least 10 years and the other criteria for obtaining a benefit are met.

  • The surviving divorced is at least 60-years old, or 50 years old and disabled.
  • The wage earner worked sufficiently under Social Security so that a benefit is available.
  • The benefit to which the surviving divorced spouse is entitled to on her own account is less than the benefit available on the account of the deceased former spouse.
  • The surviving spouse files an application for benefits.

If a surviving divorced spouse remarries after becoming eligible for benefits on the deceased spouse's account, the new marriage is disregarded and benefits will continue.

Payment of Benefits

To receive benefits, the divorced spouse is required to file an application. The divorced spouse will have to supply the following documents:

  • A birth certificate,
  • Marriage certificate or other proof of marriage,
  • Divorce decree.

A surviving divorced spouse might also need to supply some proof of death of the wage earner.

It should be noted that payment of benefits to a divorced spouse based on age will not affect the amount received by either the former spouse or the dependents of a former spouse.

Military Pensions

Under the Uniformed Services Former Spouse Protection Act, a state court may divide a military pension as part of the distribution of property or as alimony pursuant to a divorce decree. If the divorced spouse was married to the military service member for at least 10 years during which the service member served with the military, the order will be honored. Only the amount of the benefit that is disposable to the member will be divided.

Benefits will terminate upon the death of the member or the death of the former spouse. It is to the advantage of a divorcing spouse to discuss with an attorney whether it is better to accept monthly benefits or to negotiate for a lump sum payout of the spouse's share of the pension.

In applying for benefits, pursuant to a divorce decree or separation agreement, the spouse needs to the following documents:

  • A copy of her marriage certificate,
  • A copy of the divorce decree showing her entitlement,
  • A copy of the Uniformed Services Former Spouse Protection Act order.