Colorado Divorce and Social Security Benefits

Social Security benefits come up in almost every divorce involving spouses over 50, and there is more confusion about this topic than almost any other. The good news: claiming on your ex-spouse's record does not reduce their benefit. The bad news: you have to meet specific eligibility rules, and the court has no authority to divide Social Security in the property settlement.

Courts Cannot Divide Social Security

Social Security benefits are protected by federal law (42 U.S.C. § 407) and cannot be divided as marital property in a Colorado divorce. Unlike a 401(k), IRA, or PERA pension, the court cannot order one spouse to pay a portion of their Social Security check to the other.

However, the court can consider Social Security income when calculating spousal maintenance. If the lower-earning spouse is already receiving benefits, those payments factor into their income for the maintenance formula under C.R.S. § 14-10-114.

Spousal Benefits on an Ex-Spouse's Record

You can claim a spousal benefit based on your ex-spouse's earnings record if all four conditions are met:

1. The marriage lasted at least 10 years — this is measured from the date of marriage to the date the decree is entered, not the date of separation
2. You are at least 62 years old
3. You are currently unmarried (remarriage disqualifies you, unless the subsequent marriage also ends)
4. Your own retirement benefit is less than 50% of your ex-spouse's full retirement age benefit

If you qualify, you can receive up to 50% of your ex-spouse's full retirement age (FRA) benefit amount. Claiming before your own FRA reduces the spousal benefit.

Your ex-spouse does not need to have filed for benefits. As long as the divorce has been final for at least two years and your ex-spouse is eligible for benefits (age 62 or older), you can file independently.

This Does Not Reduce Your Ex's Benefits

Claiming on your ex-spouse's record has zero effect on their benefit amount. The SSA calculates your spousal benefit separately. Your ex-spouse receives their full benefit regardless, and if they remarry, their new spouse can also claim a spousal benefit — there is no splitting.

The 10-Year Threshold and Strategic Timing

If your marriage is close to 10 years, the timing of the divorce filing matters for Social Security eligibility. Colorado's 91-day mandatory waiting period means the earliest a decree can be entered is approximately three months after a joint filing or service on the respondent. If you are at 9 years and 8 months of marriage, waiting a few months to file — or letting the process run its natural course — may be enough to cross the 10-year line.

This is not a reason to delay a divorce that needs to happen. But if you are close to the threshold and the extra time would not cause hardship, it is worth considering.

Survivor Benefits

If your ex-spouse dies, you may be eligible for survivor benefits — up to 100% of what they were receiving (or would have been entitled to receive). The eligibility rules are similar:

• Marriage lasted at least 10 years
• You are at least 60 years old (50 if disabled)
• You are currently unmarried, or you remarried after age 60 (50 if disabled)

Survivor benefits are particularly significant for lower-earning spouses whose ex had substantially higher lifetime earnings.

What About the GPO and WEP?

If you receive a pension from a government job where you did not pay Social Security taxes (such as certain state and local government positions), you may have heard about the Government Pension Offset (GPO) and the Windfall Elimination Provision (WEP) reducing or eliminating your Social Security benefits.

Both the GPO and WEP were repealed by the Social Security Fairness Act (H.R. 82), signed into law on January 5, 2025. The repeal is effective retroactive to January 2024. If your benefits were previously reduced under either provision, SSA has been processing retroactive adjustments since February 2025. If you never applied because you assumed the offset would zero out your benefit, file a new claim — the adjustment is not automatic.

State pension systems may still have their own plan-level offsets (for example, coordinated-member reductions in some state plans), but those are plan provisions, not federal Social Security rules.

How Social Security Fits Into Your Property Division

Social Security cannot be divided, but it should be part of the overall financial picture when negotiating. A spouse with a strong Social Security benefit has a more secure retirement income floor than a spouse whose retirement depends entirely on savings and investments. Courts can weigh this when setting the duration and amount of spousal maintenance.

Our Colorado Divorce Financial Split Guide includes a resources directory covering retirement income sources — Social Security, pensions, and investment accounts — to help you build a complete picture of both spouses' post-divorce financial outlook.

See more Colorado guides →