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Can I Collect Social Security Benefits Through My Ex-Spouse?

 Posted on October 29, 2020 in Divorce

Wheaton divorce lawyerAfter a divorce, it is very common for people to begin worrying about their future, especially if they are at an age where retirement may soon be an option. One of the issues that may concern them is the question of Social Security benefits. There is much confusion over who is entitled to what, and without the help of an experienced attorney, you and your ex-spouse could find yourselves back in court or embroiled in a long debate that is simply unnecessary. 

Requirements to Collect

Almost every individual in the United States who legally works will build up what the Social Security Administration (SSA) calls a work record. Normally, you will be entitled to benefits based on the length and type of your work record, but spouses or former spouses have the right to collect based on their spouse’s record if it is better than their own. The rationale is that especially for older women, who might not be as well-equipped in terms of their ability to reenter the workforce after divorce, there needs to be a safety net of sorts to keep people out of poverty. 

The SSA lists a few criteria that must be met in order to qualify for benefits on your ex-spouse’s work record, and all of them must be met:

  1. You must have been married to the person for at least 10 years.

  2. You must be at least 62 years old.

  3. You must be currently unmarried.

  4. You must not be eligible for a higher benefit on your own or someone else’s work record, including a second spouse’s. 

Caveats to Keep in Mind

The most important thing to remember about Social Security benefits is that they cannot be divided by an Illinois court under any circumstances. Social Security must be dealt with under federal law and must be apportioned by the SSA in all but the most unusual situations. There is a provision in federal law referred to as the “anti-alienation” law, and it covers benefits such as those offered by Social Security.  According to the Supremacy Clause of the U.S. Constitution, in any area where federal law exists, it will take precedence over state law, even if the two conflict. 42 USC §407 will carry more weight than Illinois divorce law, therefore state courts simply do not bother trying to divide Social Security benefits.

Another important point to remember is that under federal law, collecting benefits on your spouse’s record will not affect the benefits to which your ex and his or her current spouse are entitled. Some hesitate before filing for spousal benefits because they believe it will adversely affect their ex-spouse, but this is not the case. The law permits benefits for any spouse who satisfies the requirements, and claiming the benefits will not reduce anyone else’s ability to claim their own benefits.

Enlist the Help of a DuPage County Divorce Near Retirement Attorney

Getting to the age where one has to contemplate Social Security and similar benefits can be frightening. Consulting a knowledgeable asset division attorney can make a big difference for your peace of mind. The experienced Wheaton divorce over 50 lawyers at Goostree Law Group will use our background and extensive legal knowledge to help you reach an outcome that serves both you and your ex-spouse. Call 630-634-5050 to schedule a free consultation with a member of our team today.




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