Pensions, which must be divided in Illinois divorces, may not be offset by the other spouse’s future expected Social Security benefits. The amount of a spouse’s future Social Security benefits may not be used to reduce the amount of marital assets that he or she receives in the property division portion of the divorce. This is true even in cases in which one spouse only makes contributions to Social Security while the other contributes to a government pension. Social Security may not be used to equalize the division of property in Illinois. Divorce lawyers may work to help their clients to negotiate fair property settlements that protect their clients’ interests, including the division of pensions, retirement accounts, real estate and all other assets from their clients’ marriages.
No Property Right to Social Security
While the Illinois Marriage and Dissolution of Marriage Act says that pension contributions that are made during a marriage are marital property and subject to division in a divorce, the Social Security Act forbids using legal processes to reach Social Security benefits. People who make contributions to Social Security from their paychecks also do not have vested property rights in their potential benefits. Instead, they expect to receive benefits, but it is simply an expectancy rather than a property right. Since Social Security benefits are not property rights, they are not assets and are not subject to division in divorce cases.
How Pensions Are Handled in Divorces
Illinois is an equitable distribution state, which means that the marital assets will be divided in a manner that is fair and reasonable. This does not mean that the value of the assets will be divided equally. The portions contributed to pensions during a marriage along with the increase in the pensions values are considered to be marital assets and subject to division. Divorce lawyers may be able to negotiate property settlement agreements that account for the pension held by one spouse. If an agreement is not reached, the court will decide how to divide a pension between the spouses. Contributions made to the pension before the marriage are not part of the marital estate.
Determining how to value a pension is difficult, and it may necessitate the help of a pension valuation expert. Courts then determine how to divide it according to a number of factors, but the potential Social Security benefits of a spouse cannot be a factor that is considered in the property division.