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Many older couples wind up in divorce, which brings up the need for retirement income. When a marriage lasts at least 10 years, a spouse becomes eligible for Social Security benefits based on the spouse’s earnings record if a divorce ends the marriage. Social Security is a federal program, so the laws affecting spousal shares after a divorce are not impacted by state divorce agreement. That means even if a divorce agreement in a California family law court says you cannot collect Social Security benefits based on your ex-spouse’s earnings, federal law says otherwise.

More than one spouse can qualify

If someone is married for 10 years, gets divorced and then remarries for at least 10 more years, both current and former spouses qualify for the Social Security benefit. Former talk show host Johnny Carson famously boasted of his many marriages and divorces and was not kidding. Three of his four ex-spouses qualified for Social Security benefits based on his substantial earnings because each of those four were married to Carson for at least 10 years. The ex-wife who did not qualify was married for less than 10 years.

Conditions apply when applying for Social Security benefits

If you are married for 10 years and then divorce, you are not immediately entitled to Social Security benefits based on your ex-spouse’s earnings. You have to be at least 62 years of age to qualify for Social Security benefits. If you are, then your ex-spouse either must be collecting Social Security benefits or you were divorced more than two years ago and your ex-spouse is eligible for benefits.

If you worked and qualify for a Social Security benefit that is larger than your ex-spouse’s benefit, then you do not get to use your former spouse’s earnings to obtain the benefit. Odds are your ex-spouse is the one who would use your earnings to get the Social Security benefit. You also cannot be remarried, which would transfer the duty to provide during retirement to the new spouse. A California family law attorney can help you learn more about ex-spousal benefits.