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  • Writer's pictureChris Stein, CFP®

Separated but Filing for Divorce at the End of the 10-Year Mark

A reader asks about the Social Security rule of reaching your marital 10-year mark for divorced spouse benefits: if you’ve been separated for a long time, are you still eligible?

“What if you had only lived together as a married couple for two years, and you went your separate ways, but you didn’t file for divorce until at the 10-year mark?”

The rule you’re talking about is how long you have to be married for spousal benefits to be awarded to you, even after divorce.  Those benefits are called ‘divorced spouse benefits.’

And the name of that rule is the 10-year rule.  You must be married for ten years to be eligible.  Social Security measures the period from your official wedding date to the date of the divorce decree.  If you make it to your tenth anniversary, you are eligible to file for spousal benefits on your ex-spouse’s record.  Even if you went your separate ways, it’s as if you were still married, because you officially were.

Divorced spouse benefits have some variations in their rules compared to actual spouse benefits, but that’s a separate issue.

What you want to know is, “Do you have to be living together the whole time? Or, if you are separated, does that time count?”  Well, good news for you – and I’m assuming you are hoping that it counts – is that it does.  No legal requirement exists that says you must be living together to satisfy the 10-year rule.

A divorce is a legal issue; you become divorced as of a specific date set by the court, and it’s that date that matters. Social Security does not consider the separation itself.

Because of that, there are times when people have been married for quite some time but haven’t reached the 10-year mark.  A sharp divorce attorney will point out that, “We might want to wait a little bit.  Go ahead and go your separate ways, but don’t officially divorce until you’ve reached the 10-year mark because there could be some Social Security benefits available to both spouses based on each other’s records.”  Waiting could benefit both spouses under certain circumstances, not necessarily just one or the other.  Sometimes, both spouses can win.

Obviously, you don’t want to stay in a bad marriage, living together, if it’s really problematic.  But don’t officially pull the trigger on the divorce until you reach that 10-year mark without fully considering what you’re going to lose by doing so.

In your case, if you were only living together for a couple of years, but you waited eight more before finally filing for divorce, as long as you made it past the 10-year mark, you both do qualify.

A curious side note: On the off chance that you remarry a former spouse, the time you are married is cumulative.  Say you were married for over six years, get divorced, and then decide to remarry. If you stay married for four more years, you will get credit for both periods you were married.  If you then divorce again, you will have passed the 10-year mark.  While this is a low-probability situation, you will be able to add up the two sets of years to reach the 10-year mark.

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