Can Social Security be divided in a divorce?

No. Social Security is a federal entitlement, not a divisible retirement account. It cannot be split, transferred, or assigned by a divorce decree or QDRO. What can happen is that an ex-spouse may claim a separate Social Security benefit based on the working spouse's record. That benefit is paid by the Social Security Administration directly to the ex-spouse and does not reduce what the working spouse receives.

What is the 10-year marriage rule for Social Security?

To claim a Social Security ex-spousal benefit on a former spouse's record, the marriage must have lasted at least 10 years before the divorce became final. The ex-spouse must also be at least 62, unmarried (or remarried after age 60 in some cases), and the benefit on the ex's record must exceed the benefit on the claimant's own record. Marriages shorter than 10 years do not qualify, even if other facts are sympathetic.

What is the Social Security Fairness Act?

The Social Security Fairness Act has permanently repealed the Windfall Elimination Provision (WEP) and the Government Pension Offset (GPO), eliminating penalties that reduced Social Security benefits for public servants. Before the repeal, teachers, firefighters, police officers, federal CSRS retirees, and other public-sector employees who earned a non-covered pension saw their Social Security benefit (and any spousal or survivor benefit) reduced. The repeal removes that reduction.

How does the Fairness Act affect a divorce involving a public-sector pension?

Before the repeal, a divorcing public-sector employee or their spouse could see their projected Social Security benefit cut substantially by WEP or GPO. That reduction often changed how the parties weighed a present value offset against a direct pension division. With WEP and GPO repealed, the Social Security benefit projection for the public-sector spouse (or the spouse claiming on their record) is no longer reduced. The settlement math changes accordingly.

Does remarriage affect ex-spousal Social Security benefits?

Generally yes. An ex-spouse who remarries before age 60 loses the right to claim on the former spouse's record while the new marriage continues. Remarriage at or after age 60 (50 if disabled) does not terminate eligibility for survivor benefits on a deceased former spouse's record. Rules are fact-specific and the Social Security Administration applies them; counsel should refer the client to SSA or a Social Security claiming specialist.

Does TOVA handle Social Security claims?

No. Social Security claiming is handled by the Social Security Administration directly. TOVA educates attorneys on how the rules interact with retirement asset division, particularly when a public-sector pension is in play, because the Fairness Act changed the settlement math. For specific claiming questions, refer the client to SSA or to a Social Security claiming specialist.

Social Security in Divorce

Social Security, Spousal Benefits, and the Fairness Act

Social Security is not a divisible retirement asset, but it sits at the center of every divorce involving long marriages or public-sector pensions. The Social Security Fairness Act changed what the projections look like for teachers, firefighters, police officers, and federal CSRS retirees.

Social Security cannot be divided by court order. It is a federal entitlement, not a divisible retirement account. What it can do is pay a separate benefit to a former spouse who meets the rules, and those rules drive settlement math in long-marriage and public-sector cases. The Social Security Fairness Act repealed the Windfall Elimination Provision and Government Pension Offset, which changes the projection for any spouse with a non-covered public-sector pension.

Social Security is not divisible

A QDRO cannot divide Social Security. A divorce decree cannot order the Social Security Administration to send part of one spouse's benefit to the other. Counsel who treats Social Security as a divisible asset in settlement drafting will find the language unenforceable at the agency.

What Social Security can do is pay a separate ex-spousal benefit. That benefit is paid by SSA directly to the qualifying ex-spouse and does not reduce what the working spouse receives. It is a parallel benefit, not a division.

The ex-spousal benefit

A former spouse may claim a Social Security benefit on the working spouse's record if all of the following are true:

The marriage lasted at least 10 years before the divorce became final.
The claiming ex-spouse is at least age 62.
The ex-spouse is unmarried, or remarried after age 60 (50 if disabled) for survivor benefits.
The benefit on the working spouse's record is higher than the benefit on the claimant's own record.

The ex-spousal benefit at full retirement age is up to half of the working spouse's primary insurance amount. Claiming earlier than full retirement age reduces the benefit. Claiming on the ex's record does not reduce the working spouse's benefit and does not require the working spouse's cooperation or notification.

The 10-year wall

Marriages that ended at year nine and several months do not qualify, even if the divorce was contested for years and the actual marital cohabitation exceeded 10. Date of marriage and date the divorce became final are what the agency uses. Counsel handling cases near the 10-year mark should know exactly where those dates fall and what tools, if any, exist in the relevant jurisdiction to delay finalization until the threshold is crossed.

Remarriage

Remarriage by the claiming ex-spouse before age 60 generally terminates eligibility on the former spouse's record while the new marriage continues. Remarriage at or after 60 (50 if disabled) does not terminate eligibility for survivor benefits. The rules are fact-specific; counsel should refer the client to SSA or a Social Security claiming specialist for benefit-strategy planning.

The Social Security Fairness Act

The Social Security Fairness Act has permanently repealed the Windfall Elimination Provision (WEP) and the Government Pension Offset (GPO), eliminating penalties that reduced Social Security benefits for public servants.

Before the repeal, the WEP reduced the Social Security retirement benefit of an individual who earned a pension from work not covered by Social Security (most state and local government teachers, firefighters, police, and federal CSRS retirees). The GPO reduced the Social Security spousal or survivor benefit of the same individuals, often to zero. For a teacher with 30 years in a non-covered state retirement system and a spouse with high Social Security earnings, GPO frequently eliminated the entire spousal benefit they otherwise would have received.

The Fairness Act repealed both provisions. The Social Security projection for any spouse with a non-covered public-sector pension is no longer reduced by WEP, and any spousal or survivor benefit on a partner's record is no longer reduced by GPO.

As of 2026 the repeal is fully in effect. The Social Security Administration has applied the change and issued the retroactive payments owed back to January 2024. One practical note for settlement: a spouse who never filed for a spousal or survivor benefit because GPO would have reduced it to zero may now be eligible, and back pay on a new application is limited, so the timing of a filing can matter to the overall picture.

Public-sector pension systems affected

The repeal primarily affects spouses with pensions in:

State teacher retirement systems (California STRS, Texas TRS, Illinois TRS, Massachusetts MTRS, Ohio STRS, and others).
State and municipal employee retirement systems where Social Security coverage was opted out.
Firefighter, police, and uniformed-service pensions outside the Social Security system.
Federal Civil Service Retirement System (CSRS) annuitants. FERS retirees were not affected by WEP or GPO because FERS includes Social Security coverage.

Cite: SSA Social Security Fairness Act page.

Why this matters in a divorce involving a public-sector pension

A divorcing public-sector employee or the spouse of one used to face a Social Security projection that was reduced (sometimes to zero) by WEP or GPO. That reduction changed how the parties weighed a present value offset of the pension against the pension itself. A spouse claiming GPO-reduced spousal benefits on the public-sector partner's Social Security record might receive nothing from that source and would need the pension division to fund retirement on their own.

Post-repeal, the projection is different. The public-sector spouse's own Social Security benefit (for any work covered by Social Security across their career) is no longer WEP-reduced. The spouse's spousal or survivor benefit on the partner's record is no longer GPO-reduced. The retirement income picture for the receiving party in the divorce is generally higher than it was before the repeal.

Counsel handling a divorce that involves a teacher, firefighter, police officer, federal CSRS retiree, or state government employee should recheck any pre-Fairness-Act Social Security analysis. The numbers from before January 2025 are outdated.

Social Security itself is not divisible, but the public-sector pensions that drive Social Security claiming strategy are. TOVA handles the retirement division on the pension side:

State and local pensions are divided under a state-specific DRO. Each state retirement system has its own procedures. See the pension division guide.
Federal civilian retirement (FERS, CSRS) is divided by Court Order Acceptable for Processing through OPM. See the FERS and CSRS guide.
Uniformed-service retired pay is divided under USFSPA through DFAS. See the military divorce guide.

What TOVA does not do

We do not file Social Security claims, advise on claiming age strategy, or represent clients before SSA. For claiming questions, refer the client to SSA or a Social Security claiming specialist.
We do not project specific Social Security benefit amounts; that is what SSA's online benefit estimator and a claiming specialist do.

For related context, see the pension division guide, the FERS and CSRS guide, the military divorce guide, and the full FAQ.

Public-sector pension in your divorce case?

Send the plan name and the most recent statement. We will tell you what order divides it, what the Fairness Act changes for the Social Security projection, and what the settlement math should account for.

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By Denisa Tova-Liebman, MBA, CFP, CDFA, CQS