When a couple gets divorced, courts will craft orders detailing how marital property is distributed upon the conclusion of divorce proceedings. In Illinois, the division of marital property is governed by rules of equitable distribution. Under Illinois’ system of equitable distribution, courts will divide all property the parties acquired during marriage—known as marital property—based on the specific circumstances of their case.
Divisible marital property includes the earnings the parties receive during the marriage, as well as social security benefits. Furthermore, courts may reach a spouse’s social security benefits to satisfy spousal maintenance or child support obligations, if applicable.
Issues Concerning Social Security Benefits in General
Married spouses are entitled to collect Social Security benefits based on either their own contributions or that of their spouse. When social security benefits are based on the other spouse’s contribution record, they are called “spousal” or “derivative” benefits.
Typically, spousal benefits will not result in a reduction of the contributing spouse’s social security benefits. However, spousal benefits cannot exceed half of the contributing spouse’s benefit at full retirement age.
An individual becomes eligible to receive social security benefits when they reach full retirement age—which has been gradually increasing from 65 to 67.
A spouse can collect social security benefits based on their ex’s record if the following criteria are met:
- The duration of the marriage was for at least ten years
- The collecting spouse is currently single
- The collecting spouse is at least 62 years old
- The other spouse is eligible to receive Social Security retirement or disability benefits
- The collecting spouse’s social security benefit is less than what they’d receive from the other spouse’s benefits
If you are eligible to receive social security benefits based on your own contributions in addition to your former spouse’s contributions, you will receive benefits based on your contribution record first. If your ex’s benefits are greater than yours, you will also receive spousal benefits based on the higher amount.
It is worth noting that you have the option of receiving spousal benefits based solely on your former spouse’s contribution record if they were born before January 2, 1954.
Because one of the requirements to collect spousal benefits is to be single, remarriage will disqualify an individual from receiving such benefits. However, if the subsequent marriage ends, they are again eligible to collect spousal benefits.
Importantly, one can receive spousal benefits even if their ex has not yet applied for social security benefits. When it comes to eligibility for spousal benefits, all that is necessary to receive such benefits is for the contributing spouse to be eligible to collect social security. Therefore, you can still collect spousal benefits so long as they meet the basic eligibility requirements to receive social security benefits, even your ex is not currently receiving social security retirement or disability.
Issues Regarding Survivor’s Benefits
If your spouse predeceases you, you may still be entitled to collect spousal benefits—also known as “survivor’s benefits.” To receive survivor’s benefits, your marriage must have lasted for ten years or more. If you remarry before turning 60, this might affect your eligibility or ability to receive survivor’s benefits.
Survivor’s benefits are calculated based on the following factors:
- The surviving spouse’s age
- The deceased spouse’s earnings
- Whether the deceased spouse is eligible for retirement benefits
- Whether the deceased spouse is eligible for disability benefits
Like spousal benefits, a former spouse’s ability to receive social security benefits based on the deceased spouse’s contribution record does not adversely affect the benefits to other survivors who are eligible to receive such benefits.
Get in Touch with the Law Offices of Jonathan Merel, P.C.
Financial issues in a divorce case can be challenging to resolve. If you have any questions or concerns about the legalities affecting your economic rights in a divorce case, you should consult a member of our legal team at the Law Offices of Jonathan Merel, P.C. for legal representation and counsel.