Social Security is the United States’ federal government’s system for making regular payments to people if they are disabled and/or elderly.
People who are getting divorced and also receiving a social security benefit (or their spouse is receiving it) need to know how a divorce will impact that benefit. The law does not treat social security income the way it treats other income or assets.
Is Social Security an asset?
Social Security payments of all kinds are protected by federal statute from any kind of division of property, divorce or otherwise.
“§ 407. Assignment of benefits (a) In general the right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.” 42 U.S. Code § 407
Federal law trumps any state law due to the supremacy clause of the United States Constitution.
While there’s been no Illinois case about dividing Social Security up between two parties, there have been two cases in Arkansas and North Dakota that say you cannot divide up a Social Security entitlement even by agreement. Kluck v. Kluck, 561 N.W.2d 263 (N.D. 1997)
Is Social Security Income For the Purposes of Child Support.
735 ILCS 505(a)(3) Social Security income for the purposes of child support. “”gross income” means the total of all income from all sources, except “gross income” does not include…Social Security Income” but then says that “Social security disability and retirement benefits paid for the benefit of the subject child must be included in the disabled or retired parent’s gross income for purposes of calculating the parent’s child support obligation, but the parent is entitled to a child support credit for the amount of benefits paid to the other party for the child”
This means that if you get Social Security you still have to pay child support…but if the kids get a separate benefit (they almost always do) then that benefit is a credit against your child support obligation. If you are receiving Social Security Disability Insurance payments, your children’s benefit will almost always be higher than your child support obligation.
In my experience, Cook County courts won’t even make the calculation. They’ll just say that the social security disability benefit to the child satisfies the child support obligation.
Is Social Security Income For the Purposes of Maintenance (Formerly Known As Alimony)
Social security income will be considered in whether a spouse will be awarded maintenance or not in Illinois.
“The court shall first determine whether a maintenance award is appropriate, after consideration of all relevant factors, including:..all sources of public and private income including, without limitation, disability and retirement income” 750 ILCS 504(a)
If you’re living exclusively off of Social Security, it is unlikely that you will be eligible to pay maintenance or alimony. But if you’re living off of a pension, dividends from an IRA or 401k, you work part-time and receive Social Security, then the Social Security will be counted in your income for the purposes of determining maintenance.
Can you Garnish Social Security Income?
In theory you can garnish Social Security Income for child support but I have never seen or heard it be done. It is very unlikely that any domestic relations court would allow for it. You’d be better off getting a judgment for child support and then collecting on that judgment in civil court.
Garnishments are limited to a maximum of 25% of the debtor’s income. 25% or less of a social security check is probably not worth the effort to garnish the debtor’s check when you could just ask that the debtor return to court on penalty of being found in contempt if the debtor does not pay.
Why Don’t I Get A Piece of My Spouse’s Social Security Income?
There’s a very good reason you don’t part of your Spouse’s Social Security Income. That is because your Social Security Income has already been enhanced by your spouse’s payments of Social Security tax.
As a spouse, you can claim a Social Security benefit based on your own earnings record, or collect a spousal benefit in the amount of 50 percent of your husband or wife’s Social Security benefit. You cannot collect both.
So, if your spouse made way more money than you and always paid Social Security taxes, you will be entitled to a benefit that is half of your spouse’s benefit (or would have been their benefit if they are, in fact, deceased).
If you’re divorced, you must have been married at least 10 years to request this spousal benefit from Social Security.
If you have questions about Social Security and Divorce, contact my Chicago, Illinois law office and schedule a free consultation with an experienced family law lawyer.