Does Divorce Affect Social Security Spousal Benefits?

More than 50 million Americans receive Social Security retirement benefits. Most of these recipients are retirees who worked and paid Social Security taxes. But millions of dependents and survivors of retired workers, including spouses and ex-spouses, also receive a monthly benefit from Social Security.

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Spouses can collect Social Security benefits based on their fellow spouse’s work records. These benefits are also available to divorced spouses who meet certain criteria, even after their ex-spouse has remarried. Divorced spouses are entitled to survivor benefits as well in some situations.

Social Security Auxiliary Benefits

Social Security provides monthly benefit payments to retired and disabled workers. It also pays dependent benefits and survivor benefits — collectively known as auxiliary benefits — to the spouses, former spouses, children, parents, and widows/widowers of retired, disabled, and deceased workers. In fact, more than 30 percent of new Social Security benefit awards in 2020 were auxiliary benefits.

Retirement benefits make up the lion’s share (78.9 percent) of Social Security payments. Retired workers collect most of these payments (75.1 percent), according to Social Security Administration (SSA) data. But the spouses of retired workers are the second most common recipient of Social Security retirement benefits.

As of March 2024, about 1.8 million spouses of retired workers — most of them women — received Social Security benefits averaging $911 per month. Divorced spouses comprise approximately 12 percent of all spousal benefit awardees.

Social Security benefits are also available to surviving spouses. The survivor’s benefit is based on the deceased spouse’s lifetime earnings.

Survivor benefits make up about 8.6 percent of all Social Security benefits, with monthly payments totaling $8.7 million and an average payment of just over $1,500 per month. Widows and widowers comprise about 65 percent of survivor beneficiaries.

In a 2021 report, the Congressional Research Service notes that spousal and survivor benefits were added to the Social Security system in 1939, when the majority of U.S. households consisted of a single earner, generally the husband.

Despite most women now working full-time — and increasingly out-earning their husbands — women are vulnerable to poverty in old age, says the report. This is attributed to demographic and economic reasons that include a longer average lifespan, lower labor force participation, and an “earnings gap” that can lead to women receiving a lower Social Security benefit than men.

Social Security Spousal Benefits

To address the benefit disparity between men and women, while accounting for women’s now much-higher labor force participation and the increase in the number of divorces, the SSA has over the years modified how it administers Social Security spousal benefits. This includes allowing same-sex spouses to receive spousal benefits in the same way as opposite-sex spouses.

Today, many individuals who qualify for spousal benefits do so based on their spouse’s work records and their own work records.

As a spouse, you can claim Social Security benefits based on your own earnings record. Or you can collect a spousal benefit up to 50 percent of your spouse’s Social Security benefit.

Those who qualify for both do not receive both in full, but they are automatically entitled to whichever benefit is higher, and they can collect on their spouse’s record even if they never worked.

You are eligible to receive Social Security spousal benefits when you turn 62 years old if your spouse is receiving retirement or disability benefits. However, if you choose to receive spousal benefits before you reach full retirement age (age 67 for anyone born in 1960 or later), your benefit amount will be permanently reduced.

These rules don’t apply to some child caregivers. If you are caring for a child younger than 16, or who has a disability and is entitled to receive benefits on your spouse’s record, you can qualify for Social Security spousal benefits at any age. Having a qualifying child in your care also means that you’ll receive your full spouse’s benefit even if you are under full retirement age.

Spouses who do not have a qualifying child in their care and begin receiving benefits before full retirement age can use this calculator to see how much their spousal benefit will be reduced.

Social Security Benefits for Divorced Spouses

As a divorced spouse, you can collect benefits on your ex-spouse’s record, even if the ex-spouse has remarried and the ex-spouse’s new spouse is collecting on the same record.

To qualify for a divorced spouse Social Security benefit, you must meet the following requirements:

• You were married for at least 10 years (although the marriage could have been briefly interrupted by divorce during this period; see below).
• You are currently unmarried.
• You are at least 62 years old.
• Your ex-spouse is eligible for retirement benefits.
• The benefit you are entitled to receive based on your own work record is less than the benefit you would receive based on your ex-spouse’s work record.

If your ex-spouse has not yet applied for retirement benefits but can qualify for them, you can receive benefits on their record, provided you have been divorced for at least two continuous years.

And if you are eligible for both a spouse’s benefit and your own retirement benefit, you may have a choice between the two benefits, depending on your age, explains the SSA.

Any Social Security benefits that you receive on an ex-spouse’s record may be reduced by you continuing to work and/or receiving a pension from a government employer that wasn’t required to withhold Social Security taxes.

Divorced Spouse Benefits and Remarriage

If you remarry, you generally can’t receive benefits on your former spouse’s record unless the new marriage ends (by death, divorce, or annulment). In such cases, you can claim benefits on either spouse’s record, as long as each marriage meets eligibly requirements (it lasted at least 10 years, etc.) for divorced spouse benefits.

In limited cases, remarriage does not end benefits obtained on the record of a living former spouse. One of these exceptions applies if you remarry the same person.

A marriage to the same spouse could be interrupted by divorce and remarriage and still qualify for divorced spouse benefits if the remarriage took place no later than the calendar year immediately following the calendar year of the divorce.

According to AARP, remarriage also may not terminate your ex-spouse benefits if your new spouse is receiving survivor benefits, divorced spouse benefits, or childhood disability benefits.

Social Security Survivor Benefits for Divorced Spouses

The divorced spouse of a worker who has passed away could be eligible for Social Security payments equal to a surviving spouse benefit. To receive a survivor benefit as a divorced spouse, your marriage must have lasted 10 years or more and you must meet these other requirements:

• You are at least age 60 (or between 50 and 59 if you have a disability).
• You are not entitled to a Social Security benefit on your own work record that is equal to or higher than a benefit from your deceased ex-spouse.
• You are unmarried (unless you qualify for an exception).

The 10-year marriage requirement does not apply if you are caring for a child under age 16, or who has a disability, and the child qualifies for benefits on your former spouse’s record. The child must also be the natural or legal adopted child of your former spouse.

Survivor benefits are equivalent to the deceased worker’s full Social Security benefit amount. However, there is a maximum family amount—typically between 150 percent and 180 percent of a worker’s full retirement benefit—that survivors can collectively receive each month.

The SSA states that a benefit paid to a surviving divorced spouse will not affect the amount of benefits other surviving family members can receive, unless the ex-spouse is a divorced parent caring for the child of a deceased worker, in which case their benefits could affect the benefits of other survivors.

Divorced widow/widower payments are also subject to these SSA rules:

• If you remarry before age 50 you can’t collect survivor benefits unless you divorce.
• If you remarry between ages 50 and 59 you aren’t eligible for survivor benefits.
• If you remarry after age 60 you can still receive survivor benefits based on your former spouse’s record. But if your new spouse is also collecting Social Security benefits, and you would receive a higher amount based on the new spouse’s work record, you will receive the higher amount.

Once you reach full retirement age and are eligible for both a survivor benefit and your own retirement benefit, you can choose to take survivor benefits first, letting your own benefits vest and then switching to retirement benefits later if that benefit is larger.

Surviving divorced spouses cannot apply online for survivor’s benefits. Contact the SSA at 1-800-772-1213 (TTY 1-800-325-0778) to request an in-person appointment at your local Social Security office.

You can use this screening tool to determine your eligibility for the different Social Security benefit programs. You may also benefit from consulting with an elder law attorney. They can help you choose the benefit option that works best for your situation.

Is Child Support Required for Adult Children in BC?

Articles January 18, 2023

In British Columbia, child support obligations usually end when a child reaches 19, the age of majority in the province. However, parents with children over 19 may still be obligated to pay child support when their adult children are pursuing post-secondary education.

For the 2020/21 year, a total of 287,523 students were enrolled in post-secondary institutions in British Columbia.^[1] Approximately 40% of students in post-secondary studies across Canada reside at home with at least one of their parents, a statistic that has remained relatively consistent since 2001.^[2] With a significant number of adult children living at home during post-secondary studies, it is important to understand parental support obligations.

This article details the legislative basis for entitlement to adult child support, factors a court will consider in determining entitlement, application of the factors for initial and subsequent degrees, and a brief explanation for calculating the amount of child support.

Entitlement to Adult Child Support

The federal Divorce Act governs child support in situations where the parents were married and have divorced. Under the Divorce Act, entitlement to adult child support depends on whether the adult child is considered a “child of the marriage”.

Section 2 of the Divorce Act defines “child of the marriage” as a child of two former spouses who is the age of majority or over and under their parents’ charge but unable, because of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. It is well established in Canadian law that “other cause” may include attendance at a post-secondary institution.^[3]

The British Columbia Family Law Act governs child support in situations where the parents were never married, or married and separated, but are not divorced. Under the Family Law Act, for the purposes of child support, a “child” is defined as including a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of their parents or guardians. Courts in British Columbia have held that the pursuit of education necessary to provide a child with a career qualifies as “another reason” for continuing dependence of an adult child.^[4]

The Farden Factors

Although both the federal and provincial legislation provide for the possibility of entitlement to child support for adult children enrolled in post-secondary education, the onus is on the claimant to prove that the adult is still a “child of the marriage”. Courts must determine whether the pursuit of education is a valid reason for continued dependence on the parents. To do this, courts must consider whether the child’s educational pursuits are reasonable and whether it is appropriate that these pursuits be financed by the parents.^[5]

The determination of entitlement is complex, and the British Columbia Supreme Court, in Farden v Farden,^[6] set out eight factors to assist in the analysis:

1. whether the child is enrolled in a course of studies and whether it is full-time or part-time;
2. whether or not the child has applied for or is eligible for student loans or other financial assistance;
3. the career plans of the child, i.e., whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;
4. the ability of the child to contribute to their own support through part-time employment;
5. the age of the child;
6. the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;
7. what plans the parents made for the education of their children, particularly where those plans were made during cohabitation; and
8. at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship with the parent from whom support is sought.

The Farden factors are not a mandatory checklist and therefore it is not necessary to establish all of the factors listed above. However, the factors should be considered in a court’s determination of entitlement and whether the child’s situation is consistent with the definition of “child of the marriage” in the Divorce Act or “child” in the Family Law Act.

Application of the Farden Factors

Courts have held that “child of the marriage” should be interpreted broadly and, in applying the Farden Factors, have found that there is a child support obligation for adult children pursuing their first undergraduate degree.

Courts in BC have also used the Farden factors to determine whether child support obligations should continue for the pursuit of graduate degrees or second degrees in a completely new field of study. The analysis for further entitlement for additional studies becomes increasingly stricter and can vary significantly based on each family’s circumstances.

Where courts have found an adult child support obligation, they have considered the family’s financial means as well as the parents’ expectations and education level.

In Krupa v Krupa,^[7] the BC Supreme Court considered the Farden factors in determining whether there were parental support obligations for a 23-year-old child that had completed a post-graduate degree. In deciding that retroactive child support was payable, the court considered that the adult child had been committed to furthering his education, he had received a scholarship to attend school, and his parents each owned substantial assets. The court also discussed that it was “strange” that the father had a Ph.D. but would not support his son’s post-graduate educational goals. The court found that the family’s education level and financial means warranted an order for adult child support.

In situations where courts have denied adult child support applications for post graduate studies, the opportunity for an adult child to work and make reasonable efforts to provide for their own maintenance was a determinative factor.

In Malbon v Malbon,^[8] the BC Supreme Court dismissed a mother’s application for child support from the father for their 27-year-old daughter pursuing a master’s degree. The mother claimed that the daughter was once again a “child of the marriage” because as a university postgraduate student, she remained dependent on her parents’ support. In dismissing the application, the court considered that the father had paid support for the daughter’s undergraduate training and that he had never intended to continue support for postgraduate work. The father claimed that he would help the daughter voluntarily with tuition and other expenses. Still, he argued that the daughter had reached the age where she must be responsible for herself and denied any legal obligation to pay her bills. The court, in agreeing with the father, also considered that the daughter had taken a two-year break to work and travel after her undergraduate studies. It further found that she had the opportunity to make reasonable efforts to provide for her own maintenance during her return to post-graduate studies.

Quantum of Adult Child Support

Once a determination is made that an adult child is a “child of the marriage”, it is necessary for the courts to  consider the Federal Child Support Guidelines and authorities to determine what amount the payor parent should pay as child support.

For a child over the age of majority, it is possible to depart from the usual Guidelines approach per s. 3(2). Section 3(2) of the Guidelines provides that where a child is the age of majority or over, the amount of the child support order is:

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

In Tome v Furtado,^[9] the court explained that the more closely the circumstances of an adult child resemble those of a minor child living at home, the less likely it is that the approach in s. 3(2)(a) will be found to be inappropriate.

While each case must be assessed on its facts, courts have held that support for an adult child attending a post-secondary institution should generally be determined per s. 3(2)(b) of the Guidelines. As stated above, a determinative factor is that adult children are obliged to make a reasonable contribution to their own education.

If you or someone you know has questions about adult child support, please contact Clark Wilson Family Law group for more information.