The Good and Bad of Social Security and Divorce in Illinois

The Bad News: Social Security benefits are not subject to division on divorce in Illinois.

Most retirement benefits such as traditional pensions paid monthly, 401K accounts and IRA accounts earned during the marriage by your spouse are treated as marital assets are routinely divided in a divorce. Simply put: if your Husband or Wife earns a retirement benefit in his or her own name, you get a share upon divorce. Usually at least 50% of the marital portion of that retirement account can be divided to you.

Retirement accounts these days frequently are the most valuable assets to be divided in an Illinois divorce primarily because single family home and condos have taken such a decline in value.

But your husbands or wives Social Security benefits, even if earned during your marriage, cannot be divided in Illinois as marital property since are not subject to division on divorce.

The Good News: Social Security benefits of your spouse may entitle you to receive your own Social Security benefits even if you have not worked enough outside the home to have earned them yourself.

A person can receive benefits as a divorced spouse on a former spouse's Social Security record if he or she:

  • Was married to the former spouse for at least 10 years;
  • Is at least age 62 years old;
  • Is unmarried; and
  • Is not entitled to a higher Social Security benefit on his or her own record.

In addition, the former spouse must be entitled to receive his or her own retirement or disability benefit. If the former spouse is eligible for a benefit, but has not yet applied for it, the divorced spouse can still receive a benefit if he or she meets the eligibility requirements above and has been divorced from the former spouse for at least two years.

Click here for more information on qualifying for divorced spouse benefits.

If you are in need of Social Security disability divorce advice, contact the experienced attorneys of Martoccio & Martoccio at 630-920-8855. With an office located in Hinsdale, Illinois, our attorneys handle matters for clients in Chicago and throughout the western suburbs.

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