Long-term marriage divorces are far more common. With increasing health and vitality into older ages, we are seeing more and more long-term marriage divorces. Retired or individuals close to retirement 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. For several reasons, there are more and more divorces involving long-term marriages. We discuss other issues involved in the gray divorce, in other companion Q&A.
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, one of the parties, in effect, asks the rhetorical question: “Is this any way to lead the rest of my life.”
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 over-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. Note that the social security administration has good basic information regarding divorce and social security.
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?
See the Gitlin Law Firm’s Questions and Answers regarding retirement assets and divorce. 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:
- 401(k) Type Plan: Assume your husband’s benefits are a defined contribution plan such as a 401(k) plan. The 401(k) benefits can be divided based upon a Qualified Domestic Relations Order. If so, what generally occurs is that the spouse rolls funds over directly to an IRA or other qualified fund. Alternatively, a portion can be taken as cash.
- Traditional Pension Plan: Assume the benefits are a traditional pension benefits that are now into pay status or will shortly go into pay status providing for monthly payments. Again, these benefits can generally be divided based upon a QDRO. Advice from an attorney who is experienced in drafting and negotiating the division of retirement benefits is essential because there are many different types of plans. Different types of plans may or may not be subject to division based on a QDRO. Others such as benefits provided by the State of Illinois can be divided based on a Qualified Illinois Domestic Relations Orders. And still other plans have unique concerns. Addressing these with an experienced matrimonial lawyer is essential.
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, especially after the enactment of the Illinois maintenance guidelines, to accurately predict. From a sense of fairness, there may be an argument that there should be a deviation from the maintenance guidelines such that maintenance in a very long-term marriage should come closer to equalizing incomes. This would mean that the party with a higher income, because of higher Social Security benefits and higher pension benefits, would be paying maintenance to the other. Thus, 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 three types of maintenance awards:
- Fixed-term maintenance that is not likely in this situation;
- Reviewable maintenance;
- Indefinite maintenance (that used to be called “permanent” maintenance). Indefinite maintenance 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. These awards are normally modifiable if there is a substantial change in circumstances.
The Gitlin Law Firm was responsible for the change in Illinois law in using the term indefinite maintenance rather than permanent maintenance. This was done because what had been called 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 $500,000 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).
See the Gitlin Law Firm’s Q&A regarding maintenance / alimony.
