Divorce in the Second Half: Over 50
Statistics show significantly increases for divorce rates among baby-boomers in the United States. This is sometimes referred to as a gray divorce. And the rates of a gray divorce have more than doubled since the 1990s.
If your over 55 and involved in a divorce, there are some common concerns. These include issues such as:
- Division of retirement assets in divorce;
- Unique issues involving spousal support in long-term marriage cases;
- How to handle the division of payment of college expenses for your children.
We discuss other questions involving the these issues in our Companion Q&A called Senior Couples and Divorce in Illinois | The Gitlin Law Firm.
Are there accurate statistics for the frequency of divorce for people over 50?
Yes.
In the 2000s, the AARP conducted a study titled The Divorce Experience: A Study of Divorce at Midlife and Beyond. It found that 61% of women were the ones who initiated a divorce. And a more recent survey shows that the statistics are more skewed that this. It showed that women initiated 69 percent of all divorces, compared to 31 percent for men. See: Who wants the Breakup? Gender and Breakup in Heterosexual Couples.
According to a 2017 study by the Pew Research Center and backed by data from the National Center for Health Statistics and U.S. Census Bureau, divorce for people who are 50 and older has doubled since 1990. The news is even less encouraging for people 65 and older where the divorce rate has tripled since 1990.
Does the reduction of income because of my retirement impact on my obligation to pay maintenance (alimony)?
Yes, but not if you retire too early and unrelated to health concerns. The Gitlin Law Firm recently published a blog regarding maintenance and retirement in long-term marriage cases. One appellate court case refused to give the husband any relief from his maintenance obligation when he took early retirement at age 54. Although age 65 is a safe bet for reducing or terminating maintenance, significant relief for early retirement is more doubtful. There are, of course exceptions. These include:
- Health impediments beyond the usual aches and pains of ordinary line;
- The existence of an estate such that one need not work to maintain a reasonable semblance of the marital lifestyle;
Caselaw involving “forced” early retirement with an attractive severance package is handled on a case-by-case basis.
Can I be awarded my husband’s Social Security?
Because I was the stay-at-home parent and raised the family, I accrued no Social Security benefits. In the divorce judgment, can the court award me, as my own asset, part of my husband’s Social Security benefits?
No. While Illinois courts consider a pension plan (that part that is earned during the marriage) an asset which can be divided between the parties, Social Security is not considered an asset that the court can divide. Yet a former spouse age 62 or older, who is not remarried, can receive Social Security benefits on account of the former spouse if the marriage lasted more than ten years and more than two years have passed since the divorce.
If I am assigned a part of my spouse’s pension plan, can I take “early retirement” under his plan?
Short answer: Yes if you had a separate-interest QDRO.
Under what is known as a Qualified Domestic Relations Order (QDRO), a non-employee spouse receives a part of the employee-spouse’s pension plan as if it were her own. When the spouse qualifies for benefits, the pension plan administrator sends the payments directly to her (or him). A non-employee spouse has the same rights under the pension plan as the employee-spouse, including early retirement. Assume one receives what is called a separate-interest QDRO… Under that form of benefit if one takes benefits early, they are actuarially reduced. Consult with a lawyer as well as a financial advisor to get advice given the complexity in this area of the law.
Is the non-employee spouse entitled to “survivor benefits” under the employee spouse’s pension plan?
Maybe.
Traditional defined benefit plans (pension plans covered by ERISA) have a qualified joint and survivor annuity. What this means is that unless the annuity is waived, it is the automatic form of benefit for someone who is married when benefits go into pay status. Considering the statistical fact that women live approximately five years longer than men, the survivor’s benefit can be significant to a surviving spouse. But sometimes before the divorce, this valuable benefit has been waived. If this is the case, you need to discuss this waiver with your lawyer. But keep in mind that with a separate interest QDRO that we discuss in our retirement benefit Q&A it is not necessary that you provide additional survivor benefits. Yet, this option is only available prior to the time benefits go into pay status.
Is a premarital (prenuptial) agreement a good idea for an over 50 second marriage?
Maybe. In a marriage involving a spouse over the age of 50, often each party wants to leave what they had before the new marriage to their own children, with the new spouse having no interest in the assets owned before this marriage. This can be accomplished through a premarital agreement. Within a premarital agreement, a possible future divorce can choose to waive or limit the right to alimony. Sophisticated premarital agreements may provide for certain sunset provisions after a given number of years of marriage.
See also the Gitlin Law Firm’s Q&A: http://gitlinlawfirm.com/family-law/divorce/senior-couple/
