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I'm getting divorced. My spouse wants the settlement to say I cannot get ex-spousal benefits. Is that legal?

No. Your soon-to-be-former spouse has no control over your future benefits. You can qualify for a divorced spouse's benefit on his or her earnings record if all of the following are true:

  • You and your ex were married for at least 10 years.
  • You are 62 or older.
  • Your ex qualifies for Social Security retirement or disability benefits. 
  • You have not remarried.

Your former spouse need not be collecting Social Security benefits yet, but if that's the case, there's one more condition: You can't claim ex-spousal benefits until the divorce is at least two years old.

If these criteria are met, you can collect between 32.9 percent and 50 percent of the monthly benefit amount your ex-spouse is entitled to at his or her full retirement age, depending on your own age when you file the claim. Your benefit has no effect on how much your former mate gets from Social Security.

Keep in mind

  • Your ex can't prevent you from claiming a divorced-spouse benefit, but Social Security won't pay it if your own retirement benefit is worth more. When someone qualifies for two types of benefit, Social Security pays the higher of the two amounts.
  • If you remarry at any time while your ex is still alive, you lose eligibility for divorced-spouse benefits on his or her record.

Updated June 7, 2021

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