There is a rising trend throughout the United States among older adults contemplating and pursuing divorce, ending marriages that lasted 30 or 40 years. While the personal and societal considerations that attempt to define the phenomenon sometimes called “gray” or “silver” divorce are still unclear, there are a host of important legal considerations that have evolved.
While child custody is generally not a factor in later-life divorces, money and assets become of primary concern.
There are special considerations in late-life divorces that come into play in determining spousal support or alimony, which is designed to balance the economic dependence of one spouse as a result of the marriage. Late-life divorces often contemplate a lengthy marriage, which often gives rise to greater economic dependency; a fixed income with limited opportunities to increase financial assets; less time for the dependent spouse to recover financially after the divorce; and health considerations that may also increase economic dependence. In addition, couples divorcing later in life often have substantial assets to divide and passive forms of income, such as rental property, dividends, and business investments, which courts will take into consideration in determining a spousal support award.
In Michigan, property acquired during the marriage is marital property that is divided equitably upon divorce. Such property may include homes or other real property, bank accounts, stocks and bonds, vehicles, and household furnishings. Late-life divorces generally contemplate longer marriages, and as such, there is generally a greater amount of property and assets that belong to the marital estate and will be divided equitably between both spouses. As such, the division of assets often times takes center stage. Age, duration of the marriage, and the contributions of each party are important factors in determining property division in late-life divorces.
Retirement benefits are a real concern for older adults going through divorce proceedings. After a lifetime of fruitful labor, retirement funds are generally quite sizeable and may constitute a primary source of income for the older couple. Any amount of retirement benefits earned during the course of the marriage will be considered marital property subject to equitable division between both spouses, regardless of which spouse holds the interest. Such retirement funds may include IRAs, 401(k) plans, and Employee Stock Option Plans.
Like retirement benefits, any portion of a pension plan that is accumulated during the marriage is subject to equitable division between both spouses upon divorce. Courts generally encourage the parties to come to an agreement as to the division of a pension. However, the division of pensions is regulated by federal law and enables the court make an order, called a Qualified Domestic Relations Order, which allows the spouse who did not participate in the pension plan to collect the benefits directly from the administrator, who is entitled to divide the payout and write a check directly to the employee and the employee’s former spouse, according to the terms of an agreement or court order.
Unlike other forms of retirement benefits, social security is not considered marital property subject to division and will remain a financial interest of the spouse who earned it. However, social security earnings are considered income and will be used by the court in making determinations as to spousal support and other property divisions. In addition, after ten years of marriage, a spouse is entitled to draw on the social security benefits of his or her spouse, even if they are divorced, without reducing the former spouse’s benefits
Health may play a significant role in divorce proceedings among older adults. Courts will take into consideration serious health conditions in dividing assets and determining a spouse’s earning capacity and need for spousal support. Health concerns may also surface in a divorce proceeding, requiring both parties to evaluate and revise legal documents, such as living wills, powers of attorney, and health care advance directives.
There are additional considerations that may also have a more significant impact on adults divorcing later in life. The effects of a divorce have a host of legal implications, particularly in the area of estate planning. It is important to analyze legal documents, such as wills, trusts, and life insurance policies, and revise the named beneficiary to reflect the current state of affairs.
Attorney Chatterton understands the sensitive and confidential nature needed to effectively handle our clients’ individual and financial concerns as they cope with the personal and legal implications of a late-life divorce. We are eager to assist our clients and establish a beneficial relationship that promotes an amicable and effective outcome in every divorce proceeding.
Contact our office today to schedule a confidential consultation, and visit our Family Law page to learn more about our services.
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