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Social Security Benefits and Divorce

 Posted on December 13, 2022 in Illinois Divorce

Kane County divorce lawyerIn an Illinois divorce, the assets the couple has amassed during their marriage have to be equitably distributed between the two. If the marriage is young, that marital estate is often not a complicated one. However, in today’s society, one of the fastest-growing types of divorce is a “gray divorce.” Gray divorce is one in which couples over the age of 50 decide to end their long-term marriage. Due to the length of the marriage, the marital estate is often a more complex one to distribute than an estate from a marriage between a younger couple. Not only may the older couple have property to divide up, but there are also often complex financial accounts, such as pensions and 401(k)s, that are part of the marital estate. This leads many people to wonder how their Social Security retirement benefits could also be impacted by their divorce.

Social Security Retirement Funds

The good news is that the court does not consider Social Security retirement benefits as part of the marital estate. Divorce is handled on a state level, with each state making its own dissolution of marriage laws. However, Social Security rules and regulations are handled by the federal government. States have no oversight or input into how that system is run.

One issue in many gray divorces, however, is that one of the spouses was the primary breadwinner while the other spouse had primary care of raising the children and taking care of the home. This means that one spouse may have made significant contributions to their Social Security retirement fund, while the other spouse did not have the same opportunities, resulting in a significantly less amount of benefit.

The good news for people in this situation is that Social Security includes special provisions that allow ex-spouses to collect Social Security benefits based on their ex’s work record instead of their own as long as they meet certain criteria. These include:

  • The marriage lasted at least 10 years

  • They are currently unmarried (it is okay if the ex-spouse has remarried)

  • Their own work record is not better than their ex’s

  • They are at least 62 years of age

And even more good news: whatever amount of benefit they qualify for does not affect their ex’s benefit amount.

Contact a Kane County Divorce Attorney for Legal Assistance

If you have decided to end your long-term marriage, you want to make sure you have a skilled St. Charles, IL divorce attorney advocating for you and protecting your best interests. Call Weiler & Associates, Inc. at 630-382-8050 to schedule a confidential consultation.


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