divorce social security disabilityIf you are contemplating divorce or you are in the process of divorce and you have been married for less than 10 years, stop and read this article.  


As a Southern Illinois Social Security Disability attorney, here is my advice to couples thinking about divorce.

If you rush ahead and get divorced before your 10th anniversary, you will give up your right to one-half of your ex-spouse’s full retirement benefit when you reach your full retirement age OR disabled widow benefits if your ex-spouse dies.

Most family law attorneys know that maintenance (also called alimony or spousal support) will generally be higher if the marriage lasted longer than 10 years, especially since the new formula in Illinois became effective on January 1, 2015.  (Since maintenance typically ends when the obligated spouse dies, even spouses who are awarded maintenance can face serious financial stress late in life.)

But, my experience as a Southern Illinois Social Security Disability representative is that not all family law attorneys realize that the divorced spouse with lower lifetime earnings is protected by Social Security Retirement, Survivors, and Disability Insurance in the following situations IF the marriage lasted 10 years or longer:

Widow Disabled, Over Age 50 and Within 7 Years of Former Spouse’s Death:

If you are:

  • Disabled
  • Over age 50
  • Have not remarried

And

Your ex-spouse:

  • Was entitled to Social Security retirement or disability benefits
  • Died in the last 7 years

Your disability benefit is equal to 71 ½% of your ex-spouse’s full retirement (or disability) amount until age 59, then more.

Widow Disabled After Age 50 and Within 7 Years of Youngest Dependent Child’s 16th Birthday:

If you are:

  • Disabled
  • Over age 50
  • Have not remarried 

If the youngest child that was your ex-spouse’s dependent:

  • Is less than 23
  • Remained eligible for dependent benefits until age 16 by staying in school

And

Your ex-spouse:

  • Was entitled to Social Security retirement or disability benefits
  • Died in the last 7 years

Your disability benefit is equal to 71 ½% of your ex-spouse’s full retirement (or disability) amount until age 59, then more.

Widow Retired and Not Remarried:

If you are:

  • Unmarried
  • Age 60 or older

And

Your ex-spouse is:

  • Entitled to Social Security retirement or disability benefits

Your retirement benefit will be a percentage of the ex-spouse’s full retirement (or disability) amount depending on the age the widow starts receiving benefits.

(If you were born before January 2, 1954, you can draw on the ex-spouse at 62 and let your retirement benefit grow and claim it later. Persons born later do not have this option.)

Widow Retired and Remarried After Age 60 or After Becoming Disabled:

For purposes of calculating benefits, the Social Security Administration will disregard the remarriage if it occurred after the divorced spouse reached age 60 or after he or she was entitled to benefits as a disabled widow(er) or surviving divorced wife or surviving divorced husband at the time of the remarriage.

For more information, here is a link to Social Security Matters explaining benefits for divorced spouses.  This is an excellent resource from my perspective as a Southern Illinois Social Security attorney.

Even if the claimant does not have a large Social Security benefit because they had low lifetime earnings, winning a claim for Social Security Disability Insurance Benefits or Supplemental Security Income can often lead to financial security because it can result in a finding of “disability” under the Administration’s regulations and open the door to benefits under the deceased spouse’s earnings record.

Joni Beth Bailey is a Southern Illinois Disability attorney.


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