Social Security and Divorce

In Illinois divorces, social security benefits are not considered marital property and cannot be directly divided. However, these benefits may indirectly impact other aspects of the divorce settlement, such as spousal support or property division. Divorced spouses may be eligible for social security spousal or survivor benefits based on their ex-spouse's work record, subject to certain qualifying criteria. Understanding the complex interplay between social security and divorce is crucial for ensuring a stable financial future post-divorce.

Understanding Social Security Benefits in Illinois Divorces

Social Security benefits are not treated as marital property in Illinois divorces, meaning they cannot be directly divided or distributed by the court as part of the divorce settlement. However, these benefits can still play a role in other aspects of the settlement:

1. Spousal support (maintenance): When determining spousal support, the court may consider the disparity in social security benefits between the spouses, particularly if one spouse has lower benefits due to sacrificing their career for family responsibilities.

2. Property division: While social security benefits cannot be divided directly, they may be considered when dividing other marital assets to ensure an equitable overall distribution.

Divorced spouses may be eligible for two types of social security benefits based on their ex-spouse's work record:

1. Spousal benefits: A divorced spouse can receive spousal benefits equal to 50% of their ex-spouse's full retirement benefit amount if the marriage lasted at least 10 years, they are currently unmarried, at least 62 years old, and not entitled to a higher benefit based on their own work record.

2. Survivor benefits: A divorced spouse may receive survivor benefits equal to 100% of their deceased ex-spouse's benefit amount if the marriage lasted at least 10 years, they are at least 60 years old (or 50 if disabled), and have not remarried before age 60 (or 50 if disabled).

Remarriage can impact a divorced spouse's eligibility for these benefits. If they remarry, they generally lose eligibility for benefits based on their previous marriage. However, if the subsequent marriage ends, they may regain eligibility for benefits based on the first marriage.

Legal Process for Handling Social Security in Illinois Divorces

For attorneys representing clients in Illinois divorces involving social security benefits, the following steps are typically involved:

1. Initial consultation and assessment:

• Meet with the client to discuss their marital history, social security benefit eligibility, and financial concerns.

• Gather information about the client's and their spouse's work history, age, and current benefits.

• Assess the potential impact of social security benefits on the divorce settlement.

2. Negotiating the divorce settlement:

• Consider the disparity in social security benefits when negotiating spousal support (maintenance) or property division.

• If applicable, ensure that the marriage has lasted at least 10 years to preserve the client's eligibility for spousal or survivor benefits post-divorce.

• Draft any necessary agreements or orders related to spousal support or property division that take into account the social security benefits.

3. Advising on post-divorce benefits:

• Inform the client of their potential eligibility for spousal or survivor benefits based on their ex-spouse's work record.

• Explain the impact of remarriage on these benefits and help the client plan accordingly.

• Encourage the client to work with a financial advisor or retirement planning specialist to maximize their benefits and ensure a stable financial future.

4. Ongoing support and representation:

• Assist the client with any post-divorce modifications to spousal support or property division that may be necessary due to changes in social security benefits.

• Provide guidance and representation in the event of the ex-spouse's death and the client's eligibility for survivor benefits.

• Collaborate with financial professionals to ensure the client's long-term financial well-being.

Throughout the process, the attorney should stay informed about changes to social security laws and regulations that may impact their client's case. By providing knowledgeable guidance and representation, the attorney can help their client navigate the complex intersection of social security benefits and divorce in Illinois.