Divorcing over the age of 50 presents unique challenges compared to divorcing at a younger age. The financial, legal, and personal landscapes are radically different and will shape a spouse’s future well into retirement.
Although nobody hopes to have to deal with divorce while aging, for many individuals it is an inescapable reality. Having experienced legal counsel is essential to protecting your rights and interests and achieving the best possible outcome. That’s where the attorneys of Pinkham & Associates come in.
What Is the “Grey Divorce” Phenomenon?
Most people assume that divorcing at an older age is rare because of the uncertainty and instability it introduces into the lives of spouses. However, increasing numbers of married couples are getting divorced over the age of 50. It is becoming so common that it has been deemed the Gray Divorce Phenomenon.
There are several reasons why this is the case, including:
- Empty nest syndrome: When children leave home, the parents who stay behind often experience a shift in their relationship. Many spouses build their lives around their children to such an extent that, outside of parenting together, they have little in common, so finding closeness and fulfillment becomes difficult for them and can lead to divorce.
- Financial disputes: As spouses near retirement they may argue over money because they may not be able to agree on how best to prepare for their exits from the workforce. In some cases, a husband or wife may hide money or make secret large purchases, actions which can place stress on the marriage.
- Health issues: Among the many problems that can sink a marriage, especially at an older age, are health issues. Chronic medical problems can be difficult to handle, and some spouses are simply unprepared for the significant adjustments that must be made, increasing the likelihood of divorce.
Infidelity: Cheating can irreparably destroy trust between spouses. For older spouses who have spent decades making memories together, their marriage suddenly looks like a lie, making divorce inevitable.
How Is a Grey Divorce Different from a Regular Divorce?
For those aged 50 and older, the rate of divorce has essentially doubled since the 1990s. Older married couples are more firmly established than younger couples, typically enjoying greater wealth and commingled property. Therefore, when these couples divorce, the financial and property issues tend to be complicated.
Additionally, the following issues can make grey divorce even more challenging:
- Higher-value and complex assets: As a person ages, they tend to accumulate more property and more diverse assets, including rental or vacation properties, family businesses, and rare collections. This further complicates the division of marital property.
- Estate plan changes: Divorce requires each spouse to update their estate plans, and untangling marital property during the process can add an additional hurdle. Selecting new executors and health care surrogates are just two examples of the necessary revisions that both spouses must make to their plans in the event of a divorce.
Insurance: Divorce can impact one’s health insurance and life insurance coverage. Notifying the insurers that a divorce is pending is an essential step, as both spouses may need new plans to ensure they receive the coverage and benefits they need in the next chapters of their lives.
How the Rule of 65 Applies to California Divorce Cases
Courts must consider many factors when determining whether, and in what amount, to award alimony to a spouse. There are two types of alimony in California: temporary and long-term. For spouses whose marriages have lasted ten years or more, the judge can order long-term or “indefinite” (which does not necessarily mean forever) alimony.
But a marriage need not have lasted long for a judge to award indefinite alimony. This is where the Rule of 65 for older spouses comes in, which applies if the age of the spouse who is to receive support plus the number of years he or she was married equals or exceeds 65. If so, alimony may actually last indefinitely, even if the marriage did not last ten or more years.
Spousal Support Under the Rule of 65
For marriages that do not meet the Rule of 65, courts will consider other factors in determining the amount and duration of alimony. These include:
- The spouses’ standard of living that was established during the marriage
- The age and health of both spouses
- How long the marriage lasted
- The recipient spouse’s job skills
- The ability of the other spouse to pay support
- How much time and money the recipient spouse would need to invest to obtain more education or training to have better job prospects
- The property and liabilities of the spouses
- Alimony tax implications
Exceptions to the Rule of 65
Judges may make exceptions to the Rule of 65 if any of the following apply:
- Retirement: If a spouse reaches retirement age (usually around 65), the judge will probably not require that person to continue working just to pay alimony. The judge will also take into account whether the spouse works in an industry in which the standard age of retirement is under 65.
- Cohabitation: When a spouse begins cohabitating with someone, their standard of living will usually improve. Courts are well aware of this fact, so they will consider cohabitation in deciding whether to lower the amount or duration of spousal support.
Marriages of less than five years: Even if the Rule of 65 would otherwise apply, it will not be effected if the marriage lasted under five years. Courts simply view the length of marriage as too short to warrant the application of the rule.
Is It Worth It to Get Divorced After the Age of 50?
No one gets married thinking it will end in divorce, but life happens. While getting a divorce after the age of 50 has its challenges, there are valid reasons to consider it:
- You are unhappy: Living in misery is a perfectly acceptable reason to end a marriage at any age, especially considering the harm it can have on your mental and physical health.
- You can still start over: Life does not end at age 50 or even 60. You may be able to enjoy a new lease on life by securing a divorce with the help of an experienced grey divorce lawyer.
- Your personal growth matters: As with spouses under age 50, older spouses often grow apart. Their personal growth is important, but a loveless and lifeless marriage could stifle it.
- You have support options: There are support groups to help you grieve the end of your marriage and find encouragement in your divorce era.
- You have employment options: Years ago, it was more difficult for a person to re-enter the workforce and become self-sufficient after the age of 50. Today, however, there are more options than ever for resuming your career or starting a new one.
Complications Involved in Silver Divorce Cases
A silver divorce, or divorcing at an older age, is sometimes unavoidable. For instance, spouses can face one or more of the following complications:
The Family Home
Aging spouses have spent years making their marital house a home. Naturally, it is one of their largest and most sentimental assets, and they may both want to keep it. But maintaining a house on your own is not easy, and you may not need all that space once you divorce.
On the other hand, you could be reluctant to leave because the prospect of finding another house is too daunting.
Financial Disparities
When spouses first marry, they may have begun their life together on relatively equal financial footing, but over time one spouse may fill more of a supportive role while the other becomes more dependent. Perhaps one spouse left the workforce years ago to fully rely on the other’s support. This leads to financial disparities that can be difficult to handle upon divorce.
Higher Education Costs for Children
Silver divorces do not typically involve child support since the children are usually fully grown. However, the couple’s children may have outstanding higher education expenses. Spouses should address these matters early in the divorce process so their children receive the education they deserve.
California’s “10-Year Rule” for Alimony
California’s “10-year rule” dictates that any marriage that has lasted at least ten years is considered to be of long duration. Once a marriage reaches the ten-year mark in California, a divorce could allow the spouse who earns less money to receive alimony indefinitely. This is especially relevant in grey divorces since many of these couples have been married for longer than ten years.
Although this rule is not absolute, it will have a significant bearing on divorce settlement discussions and litigation. Whichever side of the divorce you are on, you should seek seasoned legal counsel to help you.
Can You Be Disqualified for Alimony?
A spouse can be disqualified from receiving alimony if, for instance, the factors involved do not weigh in that spouse’s favor. Maybe the marriage did not last long or the spouse who would be ordered to pay support cannot afford it.
Another factor that could disqualify a spouse is a criminal past. Cases of domestic violence or abuse in particular can render a husband or wife ineligible for alimony.
How Are Retirement Plans Divided in a Divorce?
For most divorces, retirement funds are considered marital property (or community property) and are therefore subject to division. Funds in either spouse’s retirement account prior to marriage are not considered marital funds, but increases in those amounts are. To divide a retirement account in a way that does not incur tax penalties, an ex-spouse must obtain what is called a Qualified Domestic Relations Order (QDRO) and send it to the retirement plan administrator.
Courts can use QDROs to award all or a portion of either spouse’s retirement funds to the other spouse. With respect to older spouses, another relevant factor is whether the retirement plan is fully vested. A fully vested retirement account containing only money that was earned after the date of marriage (marital funds) is generally the easiest type to divide while conversely, accounts with a mix of pre-marital (separate) and marital funds, or with benefits that have not fully vested, are more complex.
Due to the nature of QDROs, vesting, and separate vs marital property, we strongly advise you to seek an attorney experienced in assisting with divorce and retirement benefits.
If You Are Considering Filing for a Grey Divorce, the Lawyers at Pinkham & Associates Can Help You
There are undeniably different dynamics for spouses who divorce at an older age, but the right law firm can meet these challenges. Pinkham & Associates has the dedication and experience it takes to effectively advocate for spouses dealing with grey divorces.
Our firm has been a proud member of the Orange County Family Law community for over 25 years and proudly represents spouses at every step of their divorce. We will seek the most advantageous outcome regardless of your circumstances, and we are committed to keeping you informed of the status of your case while implementing a personalized and cost-effective legal strategy that best fits your situation. Contact us today to get started.
