Can a Divorced Spouse Collect Social Security from Their Ex?

 Posted on July 29, 2024 in Divorce

Divorce data from 1990 to 2021 found that divorce rates for those over 45 increased during that time period, while divorce rates for those younger than 45 actually dropped. The most significant increase was among those 65 and older—the rate of divorce for this age group tripled from 1990 to 2021.

Because of the significant increase in what is known as "gray divorce," property division issues during divorce--including the division of Social Security benefits—have moved to the forefront.  To ensure you receive the best, most knowledgeable legal advice during your divorce, it is essential that you speak to a skilled Naperville property division attorney from Law Office of Ronald L. Hendrix, P.C.. We will work hard to ensure you receive your fair share of the marital property.  

What Factors Are Considered During Asset Division?

Illinois is an equitable distribution state rather than a community property state. This means that rather than distributing marital assets right down the middle, they are distributed fairly. To determine a fair division of marital assets in the state, the following factors are considered:

• The contributions made by each spouse during the marriage, whether those contributions are directly financial or include such things as homemaking.
• Whether either party dissipated marital assets; if this is found to be true, the spouse who did not dissipate marital assets is likely to be awarded a larger share of those assets.
• The length of the marriage will help determine asset division, as well as spousal support.
• The current financial position of each party, including whether the parent who receives primary responsibility for the children will be able to afford housing.
• Whether either party is currently paying child support for a child from a previous marriage
• The age, mental and physical health, occupation, education, income, skills, estate, liabilities, needs, and employability of each party
• Whether spousal maintenance is awarded
• The future earning potential of each party
• The tax consequences for each spouse, based on the assets awarded

Can I Collect Social Security Benefits Based on My Ex-Spouse’s Earnings?

What if you, perhaps as the spouse who cared for the marital home and children, are now looking at divorce? Can you collect SS benefits based on your spouse’s earnings? In many cases, the answer to that question is "yes." If your spouse is at least 62 years old, and you were married for at least ten years, you may be able to receive an amount equal to as much as 50 percent of your ex’s SS benefits. You must also currently be unmarried to receive these benefits.

If you are at the age where you are entitled to collect Social Security, your benefit amount must be less than the amount you will receive by filing on your ex’s SS benefits. You cannot collect your benefits and those of your ex-spouse; you can only collect the larger of the two. If you wait until you are at the full retirement age to apply for benefits based on your ex-spouse’s earnings, you will be entitled to receive half of the full amount of your ex-spouse’s SS benefits.

If you have been married and divorced more than once, and each marriage lasted longer than ten years, you can collect SS benefits from the spouse whose SS benefits would result in the highest benefits for you. You cannot collect on more than one ex-spouse’s benefits. Any benefits you collect based on your ex-spouse’s SS benefits will not affect the ex-spouse or the benefits of their new spouse.

Contact a Will County, IL Property Division Attorney

If you were a stay-at-home mom or homemaker throughout your marriage, you may not have had the opportunity to earn a paycheck that had Social Security taxes deducted. This means that you might not be entitled to SS benefits when the time comes. It is important that you speak to a knowledgeable DuPage County, IL property division attorney from Law Office of Ronald L. Hendrix, P.C. if you have questions regarding whether you are entitled to Social Security benefits based on your ex-spouse’s earnings. When you choose Law Office of Ronald L. Hendrix, P.C., you will benefit from an attorney who is a court-appointed mediator and who holds a master’s degree in guidance in counseling in addition to his law degree. Call 630-355-7776 today.