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How Does an Illinois Divorce Affect Social Security Benefits?

 Posted on July 06, 2021 in Divorce

DuPage County family law attorneyThere are many factors to consider during your Illinois divorce, and one that is frequently overlooked is how Social Security benefits are handled. Social Security benefits are more complicated than other retirement assets like a 401(k), because federal law prohibits assigning, dividing, or garnishing Social Security benefits. This means that state courts cannot even consider Social Security benefits in the division of marital property, because dividing and allocating them–even by anticipating a larger future benefit for one spouse and allocating marital property to the other spouse accordingly–would contradict federal law.

However, that does not mean that you are not entitled to your own Social Security benefits according to your former spouse’s benefits. Federal law does allow for certain circumstances in which a divorced wife or husband of an insured person is entitled to Social Security benefits based on their former spouse’s work record.

When Can I Qualify for Spousal Benefits After a Divorce?

Federal law will consider the following factors when determining whether you are eligible for benefits:

  • Marriage – You must have been legally married to your former spouse for at least ten years. You must also be currently unmarried, and you must have been divorced from your former spouse for at least two years. It does not matter if your former spouse has remarried.

  • Age – You must be at least 62. Your former spouse must also be at least 62, even if they are not collecting their benefits yet.

  • Your own benefits  – You cannot collect benefits for two people at once. If your old-age or disability benefits are equal to or larger than the benefits you could collect through your former spouse, you must collect your own instead.

Even if you meet all of these criteria, your former spouse’s benefits are not automatically conferred upon you. You must apply proactively through the Social Security Administration and see the process through.

What Will My Payments Look Like?

If your former spouse is still alive, your payment amount will be determined based on their benefits. If you are at full retirement age (67, if you were born anytime after 1959), you are entitled to half of the amount of your former spouse’s payments. Like any Social Security benefits, if you begin taking payments before full retirement age, they will be permanently reduced.

If your former spouse is deceased, everything remains the same except that you must be at least 60 in order to qualify for benefits. If you remarry before age 60, you cannot receive benefits through your former spouse; if you remarry after 60, you can.

Contact a Wheaton, IL Divorce Lawyer

Social Security benefits eligibility is complicated. If you are going through a divorce and wondering how the process will affect either your or your spouse’s Social Security benefits, speak with a DuPage County divorce attorney. The experienced lawyers at Goostree Law Group can help you understand how divorce will impact your financial situation and make wise decisions regarding your future. Contact us at 630-364-4046 for a free, confidential consultation.





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