Divorce and Social Security Benefits in Colorado

A Colorado judge cannot divide Social Security. Federal rules may still give you a benefit on your former spouse’s record, and the timing decisions are unforgiving.

If you are divorcing in your fifties or sixties, this is often the question underneath all the others. The answer sits in two separate systems that people routinely blend together.

Social Security is federal and runs on its own rules. Your Colorado case runs on state law. Neither one controls the other, and knowing where the line falls is most of what you need.

What a Colorado Decree Can and Cannot Do

Start with the hard limit. The Social Security Act bars assigning benefits, and courts follow Supreme Court reasoning on a parallel federal pension statute in holding that states cannot divide them in a divorce.¹ No Colorado judge can award you a share of your former spouse’s Social Security.

Colorado follows that rule directly. A trial court cannot distribute or divide Social Security benefits as marital property, and it cannot divide other property to compensate for them dollar for dollar.² It can still treat the benefits as part of each spouse’s economic circumstances, which is consideration rather than offset.

Maintenance is different, and this is the part most guides get wrong. A Colorado decision from 2024 holds that Social Security retirement benefits count as gross income when a court sets maintenance.³ An award payable from them does not violate the anti-assignment provision.

So the benefits are never divisible, and they are visible in both settings. Property division can weigh them as an economic circumstance, and maintenance counts them as income outright.

Language in a settlement that purports to assign Social Security does not bind the Social Security Administration. The agency applies federal eligibility rules whatever the decree says.

That distinction does real work in a settlement. A spouse with a strong earnings record may be asked for more in Colorado spousal maintenance. A spouse with little record of their own may need a larger share of other assets.

The Divorced Spouse Benefit

This is the benefit most people have never been told about, and the conditions are specific. Your marriage lasted at least ten years, you are sixty-two or older, you are currently unmarried, and your former spouse qualifies for Social Security.⁴ If you have been divorced at least two years, you can claim even if they have not filed yet.

The amount is up to half of your former spouse’s benefit at their full retirement age. You receive less than half if you claim before your own full retirement age, and you do not get it on top of your own.

What actually happens is simpler than the usual explanation. Social Security pays your own benefit first and adds the difference if the amount based on your former spouse is higher. You end up with the larger of the two.

Three things are worth knowing because they stop people from claiming. Your claim does not reduce your former spouse’s check or their current spouse’s check, they do not have to agree, and they are not told.

The Divorced Survivor Benefit

If your former spouse dies, a different and more generous benefit opens up. A surviving divorced spouse generally needs a marriage of at least ten years and must be sixty or older, or fifty if disabled.⁵ The amount can reach the full benefit your former spouse was entitled to, reduced if you claim early.

Remarriage is where this one turns. Remarrying before sixty generally ends eligibility on the earlier record, and remarrying at sixty or later generally does not.

That single threshold is worth checking before you set a date rather than after. The rule does not bend for a ceremony already booked.

Divorcing in your fifties or sixties?

The federal thresholds do not move, so they are worth checking before a decree is entered rather than after. Schedule a free consultation with Johnson Law Group and we will work through how your retirement picture should shape the settlement.

The Claiming Strategy That No Longer Exists

Older guidance often suggests claiming a divorced spouse benefit first and switching to your own later, once yours has grown. For almost everyone reading this, that is no longer possible.⁶ Anyone born on or after January 2, 1954 who files for a retirement or a spousal benefit is deemed to have filed for both.

You receive the higher of the two rather than one now and the other later. The restricted application that made the old strategy work survives only for people born on or before January 1, 1954.

There is one place the strategy still works, and it is an important one. Deemed filing has never applied to survivor benefits.

So a surviving divorced spouse can take a survivor benefit as early as sixty and switch to their own retirement benefit later, after it has grown, or do the reverse. The switch is not automatic and requires a new application.

If You or Your Ex Worked for a Colorado Public Employer

This part of the picture changed recently and most material has not caught up. Most PERA members do not pay into Social Security, because PERA serves as the substitute for it.

Two rules used to cut those benefits down. The Windfall Elimination Provision reduced a public employee’s own Social Security benefit, and the Government Pension Offset reduced their spousal and survivor benefits.⁷ Both were repealed in January 2025, reaching benefits payable for months after December 2023.

That matters directly here, because the Government Pension Offset was what wiped out divorced spouse and survivor benefits for many Colorado teachers and public workers. Those benefits may now be available where they were not before.

Your PERA benefit itself is unaffected. If you were told years ago that claiming on a former spouse’s record was pointless because of the offset, that advice is now out of date.

Timing Decisions That Cannot Be Undone

The ten-year marriage

The marriage has to reach ten years before the divorce is final. Nine years and ten months produces nothing, and no court can waive it or make an exception.

It is easy to reach mediation a few months short of ten years. Where both sides understand the stakes, delaying entry of the decree is a negotiable point rather than a trick.

Remarriage

Remarrying generally ends a divorced spouse benefit on a former spouse’s record. For survivor benefits the line is age sixty, with remarriage before that generally ending eligibility and remarriage after it generally not.

When you claim

Claiming before your full retirement age permanently reduces the monthly amount, and the reduction does not reverse later. Waiting past full retirement age grows your own benefit, though not a spousal or survivor one.

The right answer depends on your own record, your health, whether you are still working, and what else came out of the divorce. This is a question for a financial professional alongside your attorney.

What to Do While Your Case Is Open

Pull your own earnings record from Social Security and read it, because errors happen and they are fixable. Note your marriage date and the date your decree was entered, since those two dates decide the ten-year question.

Raise Social Security with your attorney early rather than assuming it is already in the analysis. It belongs in the same conversation as retirement accounts and maintenance, not after them.

Then look at the whole picture together. Social Security sits alongside retirement accounts, pensions, and whatever comes out of Colorado property division, and it is the one piece a court cannot adjust for you.

Call Social Security to confirm eligibility and amounts, but take claiming strategy elsewhere. Representatives answer the question you ask and do not know what else is happening in your case.

Frequently Asked Questions

Can a Colorado judge divide my ex-spouse’s Social Security?

No. Federal law prevents Social Security from being assigned, and Colorado courts cannot distribute or divide it as marital property or offset it dollar for dollar. Language in a settlement that purports to assign benefits does not bind the Social Security Administration.

Does my Social Security count for spousal maintenance in Colorado?

Yes. A 2024 Colorado decision holds that these benefits are included in gross income when a court sets maintenance, and that an award payable from them is permitted. The limit applies to property division, not to maintenance.

How long do we have to be married for me to claim on my ex’s record?

At least ten years, measured before the divorce is final. You also generally need to be sixty-two or older and currently unmarried. If you have been divorced at least two years, you can claim even if your former spouse has not filed yet.

Can I claim on my ex’s record now and switch to my own benefit later?

Not for a divorced spouse benefit, if you were born on or after January 2, 1954. Filing for one is deemed a filing for both, and you receive the higher. Survivor benefits are the exception, because deemed filing has never applied to them.

Will my ex-spouse find out if I claim on their record?

No. Your claim does not reduce their benefit or their current spouse’s benefit, they do not have to consent, and they are not notified.

Talk With a Colorado Family Law Attorney

The federal thresholds do not bend, and they do not care that a settlement was otherwise reasonable. Crossing ten years, or waiting until sixty to remarry, can be worth more than a line item in the property division.

Johnson Law Group works with clients whose divorces turn on retirement security, and you can learn more about our approach on our Colorado family law page. You can find our offices in Denver, Colorado Springs, Commerce City, Englewood, and Fort Collins.

You can also read about the background and experience of the attorneys on our team. Social Security is one piece of how a Colorado divorce is structured from filing to decree, and it is the piece the decree cannot change. Schedule a free consultation to talk through your situation.

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