Divorce and Social Security

[PatriciaC61149]

 Married 40 years.  Divorced 9 months.  Ex (age 74) started collecting SS 9 years ago.  I just reached full retirement age (66.5).

Social security told me that I could not collect under his name because I was not divorced for TWO years yet and to reapply then. Said that rule applied was across the board - applied to everyone.

According to AARP, the two year rule only applies if EX has not started SS yet.

Who is correct? If AARP is correct, how do I fight this with SS?

[Tonster521]

@PatriciaC61149 I suspect you may have called the SSA  asking about your eligibility for Divorced Spouse's Benefits. And, the person who answered your call either did not listen to the facts you provided or was not aware of the Divorced Spouse's Benefits provisions. Gail has provided the pertinent SS documents/links that clearly indicate that the 2 year period is only applicable if your ex-spouse has not applied for his  SS Benefits. Because your ex-spouse has been receiving SS Benefits for 9 years, you can apply for Divorced Spouse's Benefits. I am providing a link to Form SSA-2 Information You Need to Apply for Divorced Spouse's Benefits https://www.ssa.gov/forms/ssa-2.html which also appears as the last bullet point in the link that Gail provided in her April 17th post. You do not need phone approval to apply. When calling the SSA or any organization, it is a "roll of the dice" that you will get someone who is knowledgeable about your individual question or situation. So, my suggestion is just apply. If you have not remarried, your application for Divorced Spouse's Benefits should be approved without a 2 year waiting period based on the info you provided. 

[GailL1]

@Tonster521 

Agree 100%

[GailL1]

Personally, I wouldn’t take anybody’s word for something so important to your finances - I would always verify at the source and have the source noted for any reference.  The SSA (Social Security Administration) has a LOT of new people working there, they are really behind and so it is probably a stressful environment.

Straight from the “horse’s mouth” - the link

SSA.gov - Benefit Planner / Retirement / Benefits for Your Family

Look under the Heading of:  BENEFITS FOR YOUR DIVORCED SPOUSE 

I am only copy/pasting the part that answers your question here + a little more - there is more at the link on this benefit so you should review it all - remember this is written to the primary account holder.’

from the link~ copy/paste:

IF you have not applied for retirement benefits, but can qualify for them, your ex-spouse can receive benefits on your record if you have been divorced for at least two continuous years.

If your ex-spouse is eligible for retirement benefits on their own record, we will pay that amount first. If the benefit on your record is higher, they will get an additional amount on your record so that the combination of benefits equals that higher amount.

[PatriciaC61149]

This is as clear as mud!

According to AARP (https://www.aarp.org/retirement/social-security/info-2016/divorced-social-security-benefits.html), it states that the two year rule ONLY applies if the ex-spouse has not started collecting SS yet.

Exact quote from above link:

"Unlike a current spouse, a divorced person can get benefits if their ex is eligible for retirement benefits but has not yet claimed them.

However, if your ex hasn’t claimed, there’s a twist to the eligibility rules: In addition to the age and marital criteria noted above, you must have been divorced for at least two years. That waiting period does not apply if your ex is already collecting Social Security."

Like i said, clear as mud!  There are several links on the SS website re divorce - none of them are clear.

[GailL1]

@PatriciaC61149 

It seems very clear to me in the write ups -  

What this is trying to prevent is loop-holes -

Ever hear of a primary account holder refusing to file for their Social Security Retirement benefits because they don’t want their X to have access to it - that why the SS rules differ between regular Spousal benefits and Divorced Spousal Benefits in regards to this part of the rule:   . . . . IF you have not applied for retirement benefits, but can qualify for them . . . . 

Then on the other hand is another loop-hole which they are trying to fill, that is to say, a couple that just divorce so that this benefit can be activated rather than having to wait on the timing of the regular spousal benefit rules  

. . . . . your ex-spouse can receive benefits on your record if you have been divorced for at least two continuous years.

And if the divorced spouse is of FRA, then the deeming rule is also in play - that is to say, they must file for all the benefits to which they are entitled including their own and any [divorced] spousal benefit to equal a benefit that is the higher in amount.

So IF your own retirement benefit, since you have reached your FRA, is larger than what you might get under the divorced spousal benefit - you cannot delay your own benefit (to grow & grow til 70) - the program will only give you YOUR OWN benefit.

Spousal benefits are always auxiliary benefits since they rely on the benefits of another.

Maybe it does take a bit of knowing the whole program and its ins and outs to put it all together sometimes - but then that still makes it “clear as mud”. 🤓

AND sometimes my head gets so full of this mud that I just want to forget about it since my benefit has already been settled years and years ago - 

You can always ask your questions any number of places and then measure all the responses - talk about mud !!!

[PatriciaC61149]

  I guess I am just dense. Sorry, but I do not understand your response at all. I wanted to collect using my Ex's record since 50% of his would be more than 100% of mine, even if I waited until I was 90! All I really wanted to know is since he is already collecting and I have reached FRA, do I have to be divorced for two years before i can apply under his benefits? I have read everything on the SS page - it is not clear at all.

[GailL1]

I don't think you are dense but you do seem to want to get into the weeds of Government and the interpretation of their language, programs and policies.

I do wish it was as easy as you seem to think - Things change in SS depending on when laws or rules change so you may have different rules for different time periods or different situations.  

So according to the POMS [Program Operations Manual System] of the Social Security System , it would depend on whether or not you are a

(1) Divorced Spouse or a

(2) Independently ---- entitled divorced spouse

The language:

NH = Number Holder meaning the person that has the SS# that is being claimed under.

RIB = Retirement Insurance Benefit

DIB = Disability Insurance Benefit

SSA.gov POMS - RS 00202.005 Divorced Spouse Effective Dates: 08/23/2023 - Present

My guess is that you are a # 1 - Divorced Spouse (so no 2-year wait)

but if you are a #2 - Independently — entitled divorced spouse - the POMS read:

c.   be finally divorced from the NH for at least 2 continuous years. The term “year” signifies a continuous 12-month period. A “year” means a period ending with the day of the succeeding year numerically corresponding to the day of its beginning, less one day. The day of the divorce is counted as the beginning point in determining the 2-year duration-of-divorce time period. For more information, see RS 00202.100.

 I could be wrong about your classification since much of the determination has to come from your application for benefits and like it says, For more information, see RS 00202.100 which is another POMS

I will try to answer more fully or clearer, when I get time and consult with some of the experts I know.  The easiest way would be for you to file for benefits or perhaps go thru their online worksheet for eligibility tool - I would hope it would give you the correct info based on your answers to the eligibility questions the tool ask - you don't have to give any identifying info while doing the form but I think you can go from there to an application at the end of the tool eligibility if you desire.

Eligibility Tool:

SSA BEST.gov - Benefit Eligibility Tool 

Application:

SSA.gov - Form SSA-2 | Information You Need to Apply for Spouse's or Divorced Spouse's Benefits

[PatriciaC61149]

What is the difference between a divorced spouse and independently-entitled divorced spouse?

[Tonster521]

@PatriciaC61149 I have read and reread the info that Gail provided and concluded the following. If you are divorced less than 2 years, your ex-spouse must be receiving their SS Benefits for you to qualify and receive a Divorced Spouse Benefit. Of course, you must meet the other requirements as well. Based on the info you provided, you meet the Divorced Spouse category as long as you have not remarried. 

If you are divorced for more than 2 years, you are considered  "independently entitled" and eligible to file for Independently Entitled Divorced Spouse Benefits if your ex-spouse has not yet filed for their own SS Benefits, but are eligible to file for SS Benefits.

[GailL1]

@Tonster521 

Wonder who writes this stuff ?  Some AI?

[Tonster521]

@GailL1 It could be a test. I think I answered it correctly. I will admit that I had to read the rules a couple of times.

[GailL1]

@PatriciaC61149 

TRY the Eligibility Tool 

Eligibility Tool:

SSA BEST.gov - Benefit Eligibility Tool 

The only difference I see in these (2) classifications of Divorced Spouse is the benefit status of the NH (number holder) - receiving vs eligible to receive.

Divorced Spouse - 

• NO 2-year divorce rule
• but the NH does NOT have to be receiving benefits yet only eligible to get them

Independently Entitled Divorced Spouse

• 2-year divorce rule is in play
• NH has to be receiving benefits already

That’s the way I interpret this but like I said try the Eligibility Tool for Divorced Spouse.

[GailL1]

Described here in this SSA link

Social Security Independently Entitled Divorced Spouse's Benefits

Eligibility Scenario: Divorced Under 2 Years Ago

From the link (copy / paste)

To be eligible for this benefit program, you must meet the following requirements:

• Be at least 62 years old and not currently married.
• Be divorced from a person who is at least 62 years old and has enough work credits to get Social Security benefits.
• Have been married to that person for at least 10 years and divorced for at least two continuous years.
• Not be entitled an equal or higher Social Security retirement benefit or disability benefit based on your own work.

end copy/paste

Try the eligibility tool 

Eligibility Tool:

SSA BEST.gov - Benefit Eligibility Tool