divorce and social security benefits

Understanding Social Security Benefits in an Illinois Divorce

Aside from retirement benefits and other long-range assets your family acquired during your marriage, Social Security benefits are one more asset to look at when dividing property after a divorce.  This asset is not one that the divorce court will give you, but one that the state you live in awards you in certain circumstances.  What should a person look for when seeking Social Security benefits?

You Cannot Collect Your Own Social Security Benefits and Those of Your Ex-spouse

You will want to look at the amount of your own benefit and then the benefit you would receive from your ex-spouse.  You cannot collect both.  The options are that an ex-spouse either receives 100% of their own social security or 50% of the other former-spouse’s social security (although this does not affect the original wage earner from collecting 100% of their own social security).

Example: A couple is married from 1983-2000 (17 years) the husband remarries for several years but divorces again.  After he is 62 and elects to take social security, he has the option of collecting 100% of his benefits or 50% or his first wife’s (because the marriage was over 10 years).  If he would have stayed married over ten years to his second wife before he divorced, he would have had the option of collecting 50% of her social security, if it was higher than his.  This does not mean though that people can collect multiple social securities, they can only collect one but they have the option of collecting whichever one has the greatest benefit after they have been married to someone for over ten years.

I am Divorced.  Do I qualify for my Ex-husband’s Social Security Benefits?

If you are divorced, you may qualify for Social Security benefits from your former spouse.  Even though you are no longer married, Social Security allows a divorced person a personal benefit, since you were a long-term partner of a member in the workforce. 

There are two ways to qualify.  When you apply, they will want to know if your ex-spouse is still alive, or if he is deceased.  You will need to be patient and read up on the benefits since the rules are fairly complicated.  Keep asking questions in the Social Security office and your patience will pay off.  

Also, any benefits that you as a divorced spouse might receive would have no effect on the amount of benefits your ex-spouse gets.

My former spouse is still living. What are the basics for that set of rules?

Basically, you can receive benefits based on your ex-spouse’s work record if:

  • Your marriage lasted 10 years or longer
  • You are currently unmarried
  • You are 62 or older

Any retirement benefit that you are entitled to receive based on your own work record, must be lower than the benefit you would receive from your ex-spouse’s record. Basically, you collect whichever benefit is higher. You cannot collect both.

Also, it does not matter if your ex-spouse has remarried.

In any event, before anything can happen, there is a “test” for your ex-spouse, too. He must be entitled to Social Security retirement or disability benefits. If he qualifies for those benefits even if he has not begun taking them, Social Security will allow you as the ex-wife to go ahead and take your ex-spouse benefits — providing that you have been divorced for at least two years.

How Much are the Social Security Benefits?

The amount of social security benefits will depend on how much your ex-spouse qualifies for. If you are at full retirement age, you will be eligible for payments that are 50 percent of whatever he would get. But if you begin taking the benefits before your full retirement age, they will be permanently reduced.

That is basically the same as what would apply if you were still married and your husband retired: You could get a spouse’s benefit of 50 percent.

The Benefits are Different if Your Ex-spouse is Deceased.

You would have to meet these conditions:

  • You are 60 or older, or 50 if you are disabled
  • Your marriage lasted at least 10 years
  • Your own retirement benefit would not be higher than what you could claim on your ex-spouse’s record
  • And there is a special twist concerning your marital status. If you remarry before age 60 (or 50 if you are disabled), you cannot receive such a benefit. But if you remarry after 60 (50 if disabled), you can.

Things Can be Different if You have a Child Younger than 16.

You can get benefits on an ex-spouse’s record at any age if you are caring for that ex-spouse’s child, who is also your natural or legally adopted child and who is younger than 16. Your benefits will continue until the child reaches 16 or is no longer disabled.

Importantly, you can receive this benefit even if you were not married to your ex-spouse for 10 years.

Multiple marriages qualify as well.

Even if your ex-spouse had multiple marriages, and then divorced, you could still be eligible for benefits.  It will depend on how long the marriages lasted and other circumstances. But, of course, you cannot collect multiple benefits on the records of multiple ex-spouses. Just one.

If your ex-husband had a previous ex-wife, which person gets the benefit?

With Social Security, it does not matter if the first ex-spouse applied before you did.  There is not just one benefit available. If you meet the qualifications, you get a benefit, regardless of what another ex-spouse has or has not done.

The rules are complex. For more information, you’d do well to read a 28-page booklet that Social Security publishes, What Every Woman Should Know. In addition to divorce, it delves into such subjects as domestic violence and your status with Social Security if you become a widow.

To collect an ex-spouse’s benefit, go online to Social Security or call 1-800-772-1213 (TTY 1-800-325-0778).

Be prepared to provide documents that establish your right to the benefit. You will likely be asked for your birth certificate, marriage license, and divorce decree. Plus you will need your ex-spouse’s Social Security number. If you do not know it, you will be asked for his date and place of birth and the names of his parents, information which will allow Social Security to look the number up.

Speak to an Experienced Divorce Attorney About the Social Security Benefits of an Ex-spouse

When it comes to Social Security Benefits of an ex-spouse, it can be complicated and confusing. It may have been a while since you divorced or perhaps you are thinking about divorce you and need guidance social security benefits.  At Anderson & Boback, our experienced Chicago divorce attorneys have spent more than 20 years helping clients with dividing marital assets including the social security benefits of an ex-spouse. Contact us today for free consultation to discuss questions about divorce and the social security benefits of your ex-spouse.

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