ARTICLES

Social Security Benefits

In most marriages, one spouse usually earns substantially more than the other over the duration of the marriage. In most cases, that means that when they retire, one spouse will have built up a larger Social Security (S.S.) benefit than the other. Federal law¹ provides a plan for a divorced spouse to receive Social Security benefits based partly on the Social Security status of the other (former) spouse.² A number of restrictions apply,³ however, and S.S. benefits are not guaranteed in every case – and they can be terminated by the government with little warning.⁴ You can learn more at the Social Security website.

Social Security benefits are not divided between spouses upon a divorce. One Illinois court said: "The Federal statute, consistent with its remedial purpose, provides for the various contingencies of life, including the dissolution of marriage. Since the statute itself provides for an equitable distribution of its benefits to dependents, spouses, divorced spouses, and other family members in the event certain contingencies occur, we will not disturb the statutory scheme by suggesting any award of any part of the actual social security retirement benefits to which [the husband] may be entitled upon his reaching retirement age."⁵

Another Illinois court has gone so far as to say that the rest of the property distribution may not be tilted in favor of one spouse in order to offset a smaller Social Security benefit. In that 2004 case⁶, the couple had been married for 33 years. The wife was a homemaker for many years and worked a little as a secretary. Because of her employment and pension, however, she was not eligible to receive Social Security benefits. The husband had been a farmer until the last year of the marriage when he began driving a truck. At the time of the divorce, his Social Security benefits were set at $850 per month and would continue to increase as he continued his employment. The judge split the wife's pension (present and all future payments) between the parties, but didn't divide the husband's Social Security. Under the court's analysis, "Social Security benefits may not be divided directly or used as a basis for an offset during [divorce] proceedings."

On the other hand, another Illinois appellate court has said that Social Security benefits may, in some circumstances, be considered in determining whether to make an award of maintenance and, if so, the extent of the award. That same decision, however, spells out other circumstances where the court should avoid considering any evidence about either spouse's possible future Social Security awards.⁸

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