How Do Social Security Benefits Work in a Divorce?

 Posted on November 29, 2023 in Divorce

After a divorce, you may qualify for your spouse's Social Security benefits. However, you can only choose between your own and your ex-spouse's; you cannot receive benefits from both. You can receive 100 percent of your benefit or 50 percent of your spouse's. You will also need to check a few boxes before the state will allow you to qualify. You should contact an experienced divorce attorney for additional information and some guidance.

The Requirements for Collecting An Ex-Spouse's Social Security Benefit

When one spouse earns substantially more throughout a marriage, it means they are likely looking to receive a larger Social Security benefit. However, the other spouse may not have access to the same benefits for themselves after a divorce. Social Security benefits cannot be divided by a divorce judge, garnished by creditors, or used to satisfy debts. For the lower-earning spouse to be able to receive 50 percent Social Security from their ex-spouse:

• The marriage must have lasted a minimum of ten years
• The lower-earning spouse must not have remarried
• The lower-earning spouse must have reached the age of 62 years
• The higher-earning spouse must have Social Security benefits available

The requirements for filing for a deceased ex-spouse's Social Security benefits differ slightly. In this scenario:

• The living spouse must be 60 years old or 50 if disabled
• The living spouse's benefits are lower than the deceased spouse's
• You can remarry after 60 (50 if disabled) and still receive benefits

The ten-year minimum marriage duration remains in effect. However, having minor children under 16 in the care of the living or lower-earning spouse permits you to apply for your ex-spouse's benefits at any age. The ten-year minimum marriage duration is also removed in this case.

Social Security Expectations

Federal law prohibits the court and the divorcing parties from considering the Social Security benefits division. This applies to both marital assets and maintenance requests. Social Security is essentially off-limits, and courts cannot use it for future payments or money payable.

You must be prepared to provide documents as proof of eligibility to claim an ex-spouse's Social Security benefits. These documents may include:

• Your birth certificate
• The marriage license for you and the ex-spouse you are claiming the benefits of
• A divorce decree for you and the ex-spouse you are claiming the benefits of
• The social security number of the ex-spouse you are claiming the benefits of

If you do not know your ex-spouse's social security number, you will likely be asked for their place, date of birth, and their parent's names. This information should be enough to allow Social Security to look for the ex-spouse's Social Security number on your behalf.

Contact a DuPage County, IL Divorce Attorney

Social Security benefits are out of a court's hands, and any decision-making regarding them is entirely up to Social Security. However, divorce brings many different marital assets into question, and you will benefit significantly from having an experienced Batavia, IL divorce lawyer representing you. Contact the The Law Office of Matthew M. Williams, P.C. at 630-409-8184 to go over your options and better prepare for your divorce case.