Social Security and Divorce: Spousal Benefits

 

If you were married for 10 or more years, you may be eligible to claim retirement benefits that are calculated based on your ex-spouse’s work record, rather than your own. The maximum benefit you can receive based on an ex-spouse’s work record is an amount equal to 50% of what that ex-spouse would receive at Full Retirement Age (age 67 if born after 1960). This is particularly important if you do not have a long record of work or had very low earnings compared to your ex-spouse. In such cases, a Social Security benefit calculated based on your ex-spouse’s lifetime work record may result in a higher benefit for you.

There are various, somewhat complicated rules for claiming spousal benefits and for determining how much you will receive. They have to do with:
a) how long you were married,
b) how long you have been divorced,
c) whether YOU are currently remarried,
d) how old YOU are,
e) how old your ex-spouse is,
f) the age at which YOU claim Social Security benefits,
g) whether your ex-spouse has claimed Social Security benefits yet,
h) whether your ex-spouse is alive or dead, and
i) the relative value of Social Security benefits based on YOUR work record versus the value of a percentage (between 32.5% and 50%) of benefits calculated on the basis of your ex-spouse’s work record.

The most basic question for divorcing spouses, however, is simple: “Can I received Social Security benefits based on my ex-spouse’s Social Security work record?”

The answer is, yes, you can receive Social Security benefits that are calculated based on an ex-spouse’s work history if each of the following four conditions is met:

1) you were married to that ex-spouse for at least 10 years;

2) you have reached at least age 62;

3) a) that ex-spouse has begun collecting Social Security OR b) the ex-spouse has reached at least age 62 AND the two of you have been divorced for at least two full, continuous years;

4) you are not currently married to someone else (there is an exception to this, for survivor benefits, if your ex-spouse has died; see below).

Once you have determined that you ARE eligible to receive benefits that are calculated based on your ex-spouse’s work record, you only have to make two decisions: 1) at what age between 62 and 67 should you claim benefits based on your ex-spouse’s record, and 2) should you avoid or delay remarrying, which would end your Social Security spousal benefits (unless you are over 60 and your ex-spouse has died, in which case you could receive survivor benefits).

How long do I have to be married to claim Social Security based on my ex-spouse’s record?

You must have been married to your ex-spouse for at least 10 years to qualify for benefits on their work record. The 10-year rule is strict: the marriage must have lasted a full 10 years from the wedding date to the date the divorce is final.

Does claiming on my ex-spouse’s record reduce their Social Security benefit?

No. This is a very common misunderstanding and myth. Claiming benefits based on your ex-spouse’s record does not affect their benefits in any way. Their benefit will not be reduced. They will not be notified, and their current spouse (if they are remarried) will still receive their full spousal or survivor benefit if eligible.

What happens if I remarry?

If you remarry, you cannot collect spousal benefits based on your ex-spouse’s work record unless this later marriage also ends (e.g., through divorce or death). In that case you would no longer be married, and you would thus be eligible for spousal benefits from the original ex-spouse.

If you remarry after age 60, (age 50 if you are married) you can still claim survivor benefits based on your ex-spouse’s record if they have died.

What if my ex-spouse remarries?

Your ex-spouse’s remarriage(s) have no effect on whether or not you are able to claim spousal or survivor benefits. What matters is that you are currently unmarried.

Their new marriage or your ex’s current spouse’s claim has no effect on your eligibility or the benefit amount you may receive.

Can I claim spousal benefits if we’re still married but planning to divorce?

Yes—if you’re currently married AND your spouse is already collecting benefits, you can claim a spousal benefit. If you later divorce, you may continue receiving the spousal benefit so long as the marriage lasted at least 10 years and you do not remarry.

If you’re still married and your spouse hasn’t yet filed, you can NOT claim a spousal benefit until they do.

What if my ex-spouse hasn’t filed for Social Security yet?

If you’ve been divorced for at least two years, and your ex is at least age 62, you can claim a spousal benefit even if they haven’t filed. This “independent entitlement” rule applies only to divorced spouses.

Can I claim survivor benefits if my ex-spouse dies?

Yes. If your ex-spouse dies and your marriage lasted 10 years or more, you may be eligible for survivor benefits—even if they were remarried. You can receive a benefit equal to 100% of what their benefit amount (not just 50%) starting as early as age 60 (or 50 if disabled).

If you remarry after age 60, you can still claim survivor benefits (but not spousal benefits) based on your ex-spouse.

What’s the best age to claim benefits?

This is complicated, and the answer depends on your financial situation and life expectancy. You can claim as early as age 62, but your monthly benefit will be permanently lower than if you waited. At age 62 (if born in 1960 or later), your spousal benefit would be equivalent to 32.5% of the benefit your ex-spouse receives at his or her Full Retirement Age. For each month you wait after turning 62, your percentage goes up by about .3%, so your maximum of 50% is reached at your Full Retirement Age (age 67, if born in 1960 or later).  

Note that spousal benefits do not increase after full retirement age, but benefits based on your own individual work record do increase after age 67, up until age 70. If you continue working until 70, your own individual social security might exceed your spousal benefit, in which case Social Security would award you the higher amount.

Can I strategically file for my spousal benefit and my own, individual benefit at different times to maximize my overall, lifetime benefit?

No, unless you were born before 1954. The Bipartisan Budget Act of 2015 eliminated the option for “restricted application” for those born after 1953. When you file for Social Security, it is considered to be an application for any benefits you are eligible for. (This is called “deemed filing.”) Social Security will determine whether your spousal benefit or individual benefit is higher, and award you the higher amount.

After my divorce, I remarried, but my new spouse died. Can I get survivor benefits based on my second spouse’s work record?

 

Yes, if you are at least 60 (or 50 if disabled), you were married at least 9 months, and you are married when your spouse dies, you can qualify for survivor benefits.

After my divorce, my first spouse died. Can I get survivor benefits based on my first spouse’s work record if I remarry?

If you are at least 60 when you remarry, you remain eligible for survivor benefits on your first spouse’s record.

What documents do I need to apply for benefits based on an ex-spouse’s record?

You’ll need:

• Your birth certificate
• Your marriage certificate and divorce decree
• Your ex-spouse’s Social Security number (or at least their birthdate and where they were born)
• Your own Social Security number and ID

You don’t need your ex-spouse’s permission, and they won’t be notified.

Footnotes

1. SSA.gov: Retirement Benefits for Divorced Spouses
2. Dillender, M. (2022). Social Security and Divorce. Journal of Pension Economics & Finance.
3. Code of Federal Regulations: § 404.331 Conditions for Spousal Benefits
4. SSA.gov: Retirement Planner – If You Are Divorced
5. SSA FAQ: Will My Ex-Spouse Know I’m Claiming Benefits?
6. Diamond, P.A. (2004). Social Security Reform. Oxford Review of Economic Policy, 20(1), 133–145.
7. SSA.gov: Survivor Benefits for Divorced Spouses
8. Gustman, A.L., & Steinmeier, T.L. (2000). Social Security, Pensions and Retirement Behaviour within the Family. Journal of Applied Econometrics, 15(5), 495–511.

Posted by Professor Benjamin Bailey, PhD

Is Divorce Mediation Fair to Women? Gender, Power, and the Role of the Mediator

 

Since no-fault divorce laws were established across the US in the 1970’s and 1980s, divorce mediation has become an increasingly popular alternative to litigation for couples seeking to dissolve their marriages. It offers speed, privacy, lower costs, a more amicable process, and greater involvement of the parties in crafting their agreement. But is it truly fair for everyone involved—especially women? While mediation can indeed offer advantages, a significant body of scholarship suggests that it can also disadvantage women, particularly when the mediator is passive and does not take into account or address common gender differences in negotiation styles and relational dynamics. To ensure fairness, especially for women, this post argues that divorce mediation should be conducted by active, evaluative mediators who are able to level the playing field for spouses of unequal power and with different conversational styles.

Gender and Power in Divorce Mediation

 

In her widely cited article, “The Mediation Alternative: Process Dangers for Women” (1985), legal scholar Tina Grillo highlights that the very qualities that make women socially effective can make them vulnerable in mediation. Women are often socialized to value cooperation and to avoid confrontation—traits that can be exploited in a process that prioritizes compromise over justice. She notes that women may be more likely to prioritize preserving relationships and avoiding conflict, even at the cost of their own interests. When confronted by an assertive spouse, women will tend to make concessions to maintain their personal connection, even when it harms their side of the financial ledger in divorce.

Similarly, Penelope Bryan in her article, Killing Us Softly: Divorce Mediation and the Politics of Power (1992), delves into how gendered communication styles affect mediation outcomes. She argues that men are socialized to assert power, control conversations, and pursue clear goals, whereas women are often taught to emphasize connection, empathy, and accommodation.

In a mediation setting, if the mediator acts more as a passive facilitator than a knowledgeable expert on divorce parameters, these differences become critical. Bryan warns that a facilitative approach risks amplifying male dominance in negotiation, particularly in emotionally charged or complex divorces. The danger, she writes, is that “women may walk away with less than they deserve because the process fails to challenge the dynamics that shaped the relationship.” Women may downplay their needs, defer to their spouse, or have less knowledge of family finances than the husband. If the mediator does not play an active role in making standards of fairness clear and prominent, the process can effectively rubber-stamp a lopsided agreement.

While not all men and women follow these patterns of course, there is considerable academic research showing that these patterns are common in among American men and women. Linguist Deborah Tannen, for example, has shown that men tend to use conversation to assert status and power, while women tend to use it to build connection. In a mediation setting, this often means men dominate discussions, while women defer or prioritize harmony over asserting needs. When mediators do not manage these tendencies, women’s voices will be underrepresented in the resulting divorce agreement.

Why Passive, or “Facilitative”, Mediation Can Fail Women

 

Facilitative mediation, in which the mediator remains neutral and merely facilitates discussion, relies on the assumption of equal bargaining power and parties who are familiar with divorce law and typical parameters for Massachusetts divorce. But this assumption is often false. As Bryan and Grillo both emphasize, the very structure of mediation may entrench inequality if the mediator is passive.

In practice, many women are at a disadvantage in negotiations due to:

• Financial dependency or lack of financial knowledge
• Greater concern for children’s emotional well-being than for financial outcomes
• Conflict-avoidant behavior
• Underestimation of both their value as a person and their legal rights

Unless the mediator actively questions, educates, and rebalances these dynamics, facilitative mediation risks producing outcomes that have been “facilitated with neutral mediation techniques” but are fundamentally unfavorable to women.

The Case for Active, or “Evaluative”, Mediation

 

An evaluative mediator, by contrast, takes a more engaged role. Evaluative mediators:

• Provide legal information and note when a proposal would not fall within common legal parameters
• Point out when one spouse or the other is making concessions
• Suggest ranges of reasonable outcomes based on law and precedent
• Provide ideas from experiences mediating with other couples
• Ensure both parties understand the long-term implications of decisions

This approach can be particularly helpful when one party—often the woman—is unwilling or unable to advocate strongly for herself. Rather than seeing evaluative mediation as coercive, it can be viewed as a leveling of the playing field of negotiation that takes into account power differentials and differences in conversational style.

Conclusion: Leveling the Playing Field with ACTIVE Mediation

 

While “facilitation” and “neutrality” are defining features of mediation, passive facilitation alone will result in many unfair agreements. Divorce mediation is not automatically unfair to women, but women will suffer in many passively facilitated mediations. As the research by Grillo (1985), Bryan (1992), and Brinig (1995) demonstrates, women face systemic and communicative disadvantages in mediation that are not addressedby neutrality alone.

To truly make mediation fair for women, practitioners must recognize that:

• Gendered communication and negotiation styles matter
• Power imbalances are not always visible but have real effects
• Evaluative mediators can play a crucial role in ensuring equity

The key to fairness for women (or any party with less power than their spouse) in divorce mediation lies not in neutrality of the mediator, but the informed, active engagement of the neutral mediator.

References:

• Grillo, T. (1985). The Mediation Alternative: Process Dangers for Women. Yale Law Journal, 100(6), 1545-1610.
• Bryan, P. (1992). Killing Us Softly: Divorce Mediation and the Politics of Power. Buffalo Law Review, 40(2), 441-523.
• Brinig, M. F. (1995). Does Mediation Systematically Disadvantage Women? William & Mary Journal of Women and the Law, 2(1), 1-32.
• Tannen, D. (1994). Gender and discourse. Oxford University Press.

Posted by Professor Benjamin Bailey, PhD

Facilitative, Evaluative, and Transformational are Functions, not Types, of Divorce Mediation

 

Divorce mediation websites often discuss mediation as if there were three distinct types of mediation: facilitative, evaluative, and transformative. This is highly misleading, as there are not three discrete types of divorce mediation. The three terms–facilitative, evaluative, and transformative—refer not to discrete types of mediation but rather to specific practices or functions within a divorce mediator’s way of working. All mediators will engage in practices that serve these three functions to one extent or another, so it is a question of emphasis in a mediator’s style, rather than of discrete types.

The important dimension for divorce mediation is whether a divorce mediator is relatively “facilitative” or relatively “evaluative” in their practice. These terms were popularized by Leonard Riskin in a highly cited 1996 article in the Harvard Negotiation Law Review entitled “Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed” (1(1), 7–51). In this article he conceptualizes facilitative and evaluative functions or strategies not as entirely discrete types but rather as ends of an axis or continuum.  (As will be discussed below, the transformational functions of divorce mediation are limited, and such transformational effects are much better pursued with a family counselor than in a divorce mediation.)

In practical terms therefore, the question you can ask a potential mediator for your divorce is not, “What type of divorce mediation do you do?” but rather, “Is your style of divorce mediation more on the facilitative end of the continuum or more on the evaluative end of the continuum?” Rephrased into everyday language, the question is “Are you a relatively passive mediator who facilitates our discussions and helps us communicate with each other? Or are you a relatively active mediator who not only facilitates communication, but also uses legal knowledge and experience to provide us with information about divorce law and common divorce practices and guides our discussion on the key decision points required by a divorce agreement?”

The Facilitative Function of Divorce Mediation

The facilitative function is the defining feature of divorce mediation. A neutral mediator helps spouses who may be experiencing conflict and strong emotions to have discussions about the terms of their divorce. The terms of the divorce are decided upon and agreed upon by the spouses. The mediator does not favor one side or the other and does not determine the terms of the divorce. The mediator is helping the couple to have reasonable discussions when they may not be able to do that on their own.

The mediator or attorney mediator prepares all the required court documents that reflect the couple’s decisions. The end result of this process is an “uncontested” divorce, in which the divorce agreement is presented to a judge who simply signs the agreement, divorcing the couple. The judge does not decide the terms of the divorce but rather signs documents making the couple’s own decisions a court order.

 

The Evaluative Function of Divorce Mediation

The evaluative function in divorce mediation is served when the mediator provides information about divorce laws and common divorce practices. The evaluative function is practiced when the mediator guides the couple to the decision points—regarding parenting plan, child support, and division of assets among others—that form the basis of the eventual divorce agreement. This guidance is crucial if a couple want to reach a reasonable agreement that a judge will approve. If one spouse says, “I’m not going to pay child support!” or “I earned the money during our marriage, so I’m going to keep the house and all our savings!”, the mediator can inform him or her that the law in Massachusetts requires child support and that property from the marriage belongs to both spouses, cutting short discussion of fantastical scenarios that are directly against the law in Massachusetts.

Many divorce mediators, seeing themselves as only facilitators, confuse providing legal information with providing legal strategy and therefore try not to provide legal information, thinking that this compromises their neutrality or imposes their perspective on the couple. This is not the case. Providing information to a couple in ways that facilitate discussions oriented to reaching an agreement that allows a judge to sign their divorce is a tremendous service to that couple. Scholar Leonard Riskin (1996) was particularly clear in arguing that mediator neutrality does not require mediator passivity, and that a mediator who provides abundant legal information to couples may be more respectful of party’s autonomy than a mediator who refuses to provide it.

 

The Transformative Function of Mediation

Divorce mediation can encourage and model reasonable modes of discussion for divorcing couples, having a transformative effect on the ways they communicate. The emotions of divorce can overwhelm couples, making it difficult for them to work together on the practical issues in divorce. If the couple has children, it is vital that they be able to communicate in effective ways as they continue to co-parent their children after divorce. Divorce mediation—with its emphasis on encouraging couples to communicate and craft the details of their divorce—can show couples that it is possible for them to work together on the practical issues they will continue to negotiate as exes and possibly co-parents.

The transformative function of mediation was at the center of Baruch Bush and Folger’s 1994 book The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition. These authors see the possible empowerment of individuals to become self-aware and confident and the recognition of the perspectives and humanity of the other party to be the most important function of mediation. In fact, they argue that the goal of mediation should be moral and relational transformation, rather than reaching an agreement. In other words, if you experience some psychological and relational transformation, your divorce mediation is a success, even if you fail to come to agreement on the terms of a divorce and fail to create a divorce agreement that will enable you to divorce.

Needless to say, this degree of psychological growth is not what most couples seeking divorce mediation are looking for. Marriage counselors and family therapists—not divorce mediators–are specialists in helping couples to improve communication, work on their relationship, and experience personal growth.

 

Posted by Professor Benjamin Bailey, PhD