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.
While there is no magic cutoff age for divorces or how divorces are handled, each age group has certain characteristics. If your over 55 and involved in a divorce you are likely more concerned about Social Security benefits after divorce, alimony or spousal support, the difficult employment market spouses with little work history are likely to face, and college expenses for now emancipated children.
Are there accurate statistics for the frequency of divorce for people over 50?
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.
The current overall incidence of divorce, as compared to marriage, is difficult to nail down but about 45% of marriages end in divorce. And the statistics indicate that part of the reason that divorce rate is higher among baby-boomers is that they have tended to get married younger, a definite factor increasing the risk of divorce.
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. An appellate court case refused to give the husband any relief from his maintenance obligation when he took early retirement at age 54. Age 65 is a safe bet for reducing or terminating maintenance, but before age 65 it is more doubtful.
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?
Yes. 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. A non-employee spouse has the same rights under the pension plan as the employee-spouse, including early retirement.
Is the non-employee spouse entitled to “survivor benefits” under the employee spouse’s pension plan?
Maybe. Many pension plans give the employee the option of reducing retirement benefits for himself during his life, so as to provide that upon his death his spouse will receive benefits for the remainder of her life. Considering the statistical fact that women live approximately seven years longer than men, the survivor’s benefit can be significant to a surviving spouse and should be negotiated for in a divorce settlement.
No “Palimony” in Illinois
Rather than marrying we lived together. Upon a breakup can my significant other successfully sue me for maintenance (alimony) or be awarded an interest in any of my property?
No. There is no “palimony” in Illinois. And, as long as you keep your assets in your own name, they remain yours. Of course if you have a provable agreement (oral or written) as to the financial aspects of your non-marital relationship, you will likely have to live up to the agreement. But keep in mind that agreements about real estate must be in writing.
Is a premarital (prenuptial) agreement a good idea for an over 50 second marriage?
Yes. 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. A premarital agreement can also address a possible future divorce by having a waiver or limitation on the amount of maintenance (alimony) that can be awarded. maintenance.
See also the Gitlin Law Firm’s Q&A: http://gitlinlawfirm.com/family-law/divorce/senior-couple/
815.338.9401