How Divorce Affects Your Social Security

 Posted on May 21, 2014 in Divorce

With the rising incidence of gray divorce, the question of how divorce proceedings affect a person’s Social Security income is becoming more pressing. Many people wonder whether the courts will divide up Social Security benefits the way they divide up other retirement accounts.

In the alternative, people often ask about whether they can benefit from their ex-spouse’s work history record. This can be an especially important issue in cases where one spouse stopped working to take care of the home, while the other continued paying into Social Security.

Division of Social Security

While the issue of dividing up retirement accounts comes up fairly often in divorces, Social Security benefits are a special case. Most retirement accounts can qualify as marital property, so courts will handle them during the equitable distribution of property in the divorce. Social Security benefits are different. Illinois courts have refused to divide Social Security benefits the way they divide other accounts.

The main reason for this is because Social Security benefits are managed by a Federal statute and, in the court’s words, “The Federal statute, consistent with its remedial purpose, provides for the various contingencies of life, including the dissolution of marriage.” The statute itself has rules for how to handle Social Security benefits for the case of divorced spouses; distributing Social Security benefits as marital property would disrupt the function of the Federal statute.

Using Your Ex-Spouse’s Record

Even though courts will not divide the Social Security benefits, the law provides a way for ex-spouses to derive the benefits of each other’s work record. This can be especially helpful to spouses who stopped working, as the other spouse will likely be eligible for higher social security benefits because of their extended work record. In the event of divorce, spouses may collect an amount equal to half of the other spouse’s full benefits, if they meet certain qualifications. The divorced spouse qualifies for these benefits if:

• They are unmarried;
• They are age 62 or older;
• Their spouse qualifies for Social Security retirement of disability benefits; and
• The benefits that they are entitled to based on their own record are less than they would receive based on their former spouse’s record.

The law also makes a provision for cases where the person’s former spouse dies. If a person is receiving benefits based on the record of their former spouse and their ex-spouse dies, they become eligible for divorced survivor benefits. These survivor benefits, which become available to a person when they turn 60, equal up to the full amount that their deceased spouse was formerly collecting.

If you are thinking of filing for divorce and have questions about the division of marital property or other issues related to the process, contact a DuPage County divorce attorney today. An experienced lawyer can help explain the complexities of the proceedings and represent your interests in court.