Senior divorces are increasing because people live longer and are married longer. A life-long commitment has become a much longer affair than 50 years ago. With increasing health and vitality into older ages, divorces are also increasing. Retired or senior individuals who divorce face different problems than other couples. Help from a qualified divorce lawyer can address some of these unique challenges.
Isn’t a senior couple divorcing rare?
No. It used to be rare, but that was when people did not live so long. Now that people are living longer, there are more divorces among seniors.
After being married for more than twenty-five years, would not the couple be used to each other, so why would there be a divorce?
What I have found in long marriages is that one of the parties, in effect, says, “Enough already.” Over the years the complaining spouse becomes less and less tolerant, until finally she, or he, feels an entitlement to live the rest of his or her life in peace.
My husband has been the primary breadwinner in the family. Will I lose social security benefits on his account if there is a divorce?
A former spouse, age sixty-two or more, who has not remarried, can receive social security benefits on account of the other spouse if the marriage lasted more than ten years. As overly simplified, when the worker spouse retires, dies or becomes disabled, the former spouse can often receive monthly benefits equal to fifty percent of what the worker spouse receives. For more specific information in this regard, you need to obtain the advice of counsel.
If my spouse’s pension plan is not in pay status, that is, my spouse is not retired, how much of the pension plan will I receive and in what form will I receive it?
First, to the extent the pension plan was earned during the marriage, it is marital property, that is, it will be divided in the divorce. For example, if your spouse has been in the pension plan for thirty years and you have been married for twenty-five years, the pension plan is 25/30 (or 5/6) marital property.
You can take your interest in the pension plan out in one of several ways:
- The pension plan is evaluated and you may take out your interest in cash and roll it over into your own individual retirement account, within sixty days. If you do not roll it over into your own retirement plan within sixty days, you will pay income tax on all of it in the year received, plus a 10% penalty.
- The court can enter a QDRO (qualified domestic relations order) which carves out of your husband’s pension plan your interest. You will be entitled to exercise all of the options your spouse can in reference to the plan, including early retirement.
Will the court divide my husband’s social security benefits as a property right, the same way as a pension plan is divided?
No. The law is that social security benefits are not regarded as an asset which will be divided in the divorce judgment, however, the income your spouse actually receives from social security should be considered regarding maintenance obligations (and support if applicable).
Take a marriage in which the husband and wife are seventy years old, they have been married for forty-five years, they are both retired and both receiving social security. How will the court divide the assets and incomes?
There are insufficient appellate court cases with a fact scenario as above so I can make a prediction. My sense of fairness is, under the circumstances, the court ruling should be that the parties will have equal assets and equal incomes, so the party with a higher income, because of higher Social Security benefits and higher pension benefits, would be paying maintenance to the other. One might start with the Illinois maintenance guidelines but in very long term marriage cases there may be excellent arguments that the guidelines should not apply.
If maintenance is awarded in a long term marriage (over twenty years) and the wife is close to, or over fifty years old, has spent most of her adult life raising the children of the parties, and has no specific income generating skill, what will be the duration and amount of maintenance?
There are basically two types of maintenance awards:
- Time limited, for example, for three years and then to be reviewed by the court.
- Permanent, which is payable until the death of either party, the remarriage of the recipient or the recipient’s cohabiting with another person on a resident, continuing conjugal basis.
The Gitlin Law Firm uses the term indefinite maintenance generally rather than permanent maintenance because permanent maintenance is not permanent — it is modifiable on a substantial change in circumstances. And it terminates if one of the above events occurs: the death of either party, the remarriage of the recipient or the recipient’s cohabiting with another person on a resident, continuing conjugal basis
Assuming the combined gross income is under $250,000 and there is an entitlement to maintenance (and certain other conditions are met), the “starting place” is that maintenance generally is indefinite maintenance (or maintenance paid for the length of the marriage).
Given the age of the wife and her lack of income producing skills, and the Illinois maintenance guidelines, the likelihood is that she will receive permanent maintenance.