Social Security Benefits and Divorce

Posted on in Divorce

social security, Wheaton divorce attorneyDuring a divorce, one of the most hotly-contested issues is often one spouse’s (or both spouse’s) Social Security benefits, either for disability or retirement. Federal law allows a divorced spouse, in some instances, to receive retirement benefits based on their ex-spouse’s work record, assuming it would pay greater dividends than their own. If you are in a position where you believe you are entitled to such income, it can generally be obtained with sufficient proof.

Criteria for Retirement Benefits

The Social Security Administration (SSA) provides specific criteria, all of which must be met, in order for a divorced person to collect retirement benefits based on his or her former spouse’s work record. The criteria are:

  • You must be currently unmarried;
  • You must be age 62 or older;
  • Your marriage to your ex-spouse must have lasted at least ten years;
  • Your ex-spouse must be legally entitled to receive retirement benefits, disability benefits or both; and
  • The amount you would receive on your own work record is less than you would receive based on your ex-spouse’s.

Generally, you are permitted to collect 50 percent of the value of your ex’s benefits. If you remarry, however, you will no longer be entitled to receive benefits from your former spouse’s record, but it only takes one year to become eligible on your new spouse’s work record if yours is not sufficient. Either way, your receiving benefits does not affect the amount that your ex-spouse or any new spouse of theirs can legally receive. Be advised, however, that if you continue to work while receiving benefits on your spouse’s record, it will likely have a negative effect on the amount of benefits you may later receive on your own record.

If Your Former Spouse Passes Away

There is some confusion for many about what happens if your ex-spouse dies before you and whether you may still collect retirement benefits based on their record. The answer is technically no, but instead, you may be eligible to collect what are referred to as survivor benefits. Survivor benefits will total 100 percent of the retirement benefits available to your spouse, rather than the 50 percent available to those whose ex-spouse is still living.

Survivor benefits are also available at an earlier age, often before “full retirement age,” which can be anywhere between 62 and 67 depending on your birth year. Generally, a surviving ex-spouse may collect benefits at age 60, but if you are disabled, it may be possible as early as age 50. As long as you are able to prove your marriage and divorce, these benefits are generally obtainable.

Contact a Skilled Divorce Attorney

Divorce is a time when both spouses generally need as many assets as possible, and Social Security can be an important factor in ensuring bills are paid, especially if you are approaching retirement age. Contact an experienced divorce lawyer in Wheaton to discuss your situation. Call 630-871-1002 for a free consultation today.


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