Can I Collect Social Security Through My Ex-Spouse?

 Posted on July 16, 2017 in Divorce

Kane County family law attorneyFollowing 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 can find yourselves back in court or embroiled in a long debate that is simply unnecessary.

Requirements to Collect

Almost everyone 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 be lacking in ability to reenter the workforce after divorce, there needs to be a safety net of sorts to keep people out of poverty.

The SSA maintains criteria that must be met in order to qualify for benefits on your ex-spouse’s work record, including:

  • You must have been married to the person for at least ten years;
  • You must be at least 62 years old;
  • You must be currently unmarried; and
  • You must not be eligible for a higher benefit on your own or someone else’s work record, including a subsequent 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 falls 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 like SSI. 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. Thus, the federal statute will carry more weight than Illinois divorce law, and state courts simply do not bother trying to divide Social Security benefits.

Another important point to remember is that under federal law, you collecting benefits on your spouse’s record will not affect the benefits to which they or their 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. When the spousal benefit was instituted, it was in an age where women did not often enter the workforce. Thus, the law permits benefits for any spouse who satisfies the requirements.

Enlist the Help of a Skilled Divorce Attorney

Getting to the age where one has to contemplate Social Security and similar benefits can be frightening. If you have questions about your eligibility to collect benefits based on your ex-spouse’s work record, contact an experienced Geneva family law attorney. Call 630-232-9700 for a free consultation at The Law Offices of Douglas B. Warlick & Associates today.



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