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Divorce and Older Couples: A Divorce Attorney’s Perspective

Divorce and Older Couples: A Divorce Attorney’s Perspective

– Divorce over 50? It’s not only possible; it’s more probable than ever. In fact, the divorce rate for people 50 and older doubled between 1990 and 2010, according to a study by Bowling Green State University sociologists. Two decades ago, those over 50 accounted for about 10 percent of divorces. Recently, the divorce rate for this age group rose to approximately 25 percent. And, even more surprisingly, approximately half of those divorces occurred in first marriages.

What are some of the things that those involved in “gray divorces” will experience? Here’s a list from my experience as a divorce attorney:

1. Alimony

Alimony is almost always granted after long-term marriages. Unlike the situation for younger couples, where they’ll get temporary alimony until they get back on their feet, it’s different for those in long-term marriages. In fact, the courts often give alimony for life for long-term marriages. This is especially true if one or both of you is still working.

2. Retirement Funds

When couples are over age 50, retirement accounts can be significant and dealing with them can be tricky. For many couples, their retirement money will be cut in half or close to it. In addition, one or both may have to put off retirement or work part-time. There are also tax implications, so this stage in the divorce negotiations can be particularly tough.

Certain qualified retirement accounts, such as 401(k) or defined pension plans, may be divided on a tax-free basis. For other retirement assets, such as IRAs, the divorce agreement will need to spell out the terms for the division of funds. One thing to remember: if one spouse receives funds from an IRA, they must be rolled into another IRA after the divorce. If not, the recipient may face a tax liability.

3. Keeping the House

Older adults often want to keep their long-time home for when their adult children and grandchildren come to visit. A couple can be locked in a particularly contentious battle if one spouse wants to keep the home while the other wants to sell it.

If you are so attached to your longtime home that you don’t want to sell it, expect to give your soon-to-be ex a substantial payment to cover their portion of its value. That might result in them keeping a greater share of their pension or having a smaller alimony obligation.

4. Social Security

If you were married for 10 or more years, you are entitled to Social Security benefits based upon your ex’s employment record if your benefit is lower than their’s. To qualify, you must be at least 62 years old, unmarried and have an ex who’s entitled to Social Security benefits. Your benefit would be equal to half of your former spouse’s full social security benefits.

5. Health and Long-Term Care Insurance

– During the marriage, one of you may have relied on the other for health insurance benefits. A divorce agreement can specify that you receive health coverage after the divorce. You may also be eligible to receive COBRA benefits for three years after a divorce. The question of who will pay for that can also be part of the divorce agreement. After that period, you may be covered by Medicare or, if you aren’t old enough to receive Medicare, the divorce agreement will need to work out who will pay for coverage until that time.

– If you expected your spouse to be your caregiver as you two got older, that, too is going to change. If you have long-term care insurance, it’s especially critical so make sure the divorce agreement specifies who will be responsible for those premiums. If you don’t have long-term care insurance it may actually be mandated as part of the divorce and the payment assigned as part of the settlement agreement.

– Divorce at any age is always difficult. But a “gray divorce” comes with some additional challenges. There’s less time to recover financially and emotionally. Adult children may feel a sense of divided loyalty and be worried about supporting each of their parents who now have diminished resources. In my experience, being bitter during the process complicates everything. Clearly, a divorce after a long-term marriage is not a spur of the moment decision. Emotions and long-simmering gripes can easily dominate the negotiations. As a divorce attorney, I advise keeping the conversation polite, civil and business-like. Then, when the divorce is granted, both of you, and all members of your family, can get on with your lives.