It is becoming more common for couples in their 50s and older to divorce. Couples who are further along in life have particular issues that are more likely to come up in divorce, and other issues that may not be as applicable. For example, older couples are less likely to have children still at home. Since child support usually ends at 18 or 21, depending on the state, this is less likely to be an issue. If there are children still home they are most likely older and able to be part of the decision making process around custody and parenting plans.
Like all divorcing couples, couples going through a late-life divorce will have to figure out how to divide assets. However, there are special issues in these divorces around asset division. One of those issues has to do with the house. When individuals get to be a certain age, they may be more likely to have health issues and need to rely on public programs like Medicaid. Medicaid eligibility requires having assets under a certain amount. However many of these programs have partial or total exemptions for the house you live in. So, $10,000 in home equity may be more “valuable” in some ways than $10,000 in cash. There are also tax benefits to keeping the house. After a certain age homeowners may also be eligible for age-related property tax exemptions and other tax benefits related to owning a home.
People who are divorcing later in life will also need to determine how to divide retirement plans and benefits. Generally, spouses are entitled to about half of the retirement benefits that their spouse earns during the marriage. Social Security benefits may also be affected by your divorce. If the marriage lasted ten years or more, and you are 62 or older, you will usually be able to collect 50% of benefits on your ex-spouse’s Social Security record. Collecting these benefits will not reduce your ex-spouse’s benefits. If your ex-spouse dies after at least ten years of marriage, you may be eligible for their full benefit amount provided you are at least 60 years old.
The older you are, the more likely it is that estate planning issues will affect your divorce. Late-life divorcing couples may want to include estate planning concerns in their divorce settlement. For example, some older divorcing couples will want to create trusts for shared children or agree to keep certain provisions in their will as part of the divorce agreement. A skilled divorce attorney can help you to understand your options. Divorcing couples will also want to take this opportunity to update their wills and anything that designates beneficiaries to make sure that the beneficiaries are who they want them to be.
Couples that divorce in late life will also want to think about life insurance and potentially including a life insurance policy as part of the divorce settlement. For example, if one party is paying the other spousal maintenance/alimony, and they die, the ex-spouse receiving those payments may be left destitute without life insurance. Some divorce agreements will include that one or both spouses need to maintain a life insurance policy of a certain amount with the other spouse named as the beneficiary. While maintenance/alimony is less favored by the court than it used to be, older couples may be more likely to have it as part of their agreement because it may be unreasonable to expect one of the parties to rejoin the workforce at their age.
Since spouses are eligible for certain benefits at specific ages, such as becoming eligible for reverse mortgages at age 62, you should consider these issues when timing your divorce. With Social Security, after 10 years of marriage you will have access to an ex-spouse’s benefits. Your divorce attorney can help you to determine what timing works best for you under the circumstances.
If one or both spouses in a marriage are in the military, the process and the concerns of the parties in a divorce may be a little different than when both parties are civilians. Though the general process is similar in that couples need to determine asset division, child custody (if applicable), and other common matters, military service will inevitably affect some of these issues.
The Servicemembers Civil Relief Act (SCRA) protects service members from civil suit while on active duty and for 60 days afterwards, at the court’s discretion. This includes divorce. However, while this rule may slow the divorce process somewhat, it will not be stopped. The court will generally review each individual situation and stay the divorce only for as long as it deems reasonable given the circumstances of the active duty spouse.
One of the most complicated aspects of a military divorce is where to file for divorce. The transient nature of military service means that it may be unclear where the proper place is. Generally, the state where the military member is stationed, the state where the military member is a legal resident, or the state where the non-military spouse lives are all permissible places to file. This will be something that you want to talk to a skilled divorce lawyer about because the state where you file is also the state whose laws govern the divorce. Which state you choose may have huge impacts on the outcome of the divorce.
Division of Military Benefits
The military has something called the ten year rule. It allows ex-spouses of military members to receive direct retirement benefits if they were married for at least ten years and those ten years overlapped with ten years of military service. For example, if you were married for ten years, but your spouse was only in the military for five of those years, you would not be eligible for those benefits. However, if you were married for 15 years and your spouse was in the military during at least ten of the years you were married, then you would be eligible for benefits. Spouses who were married for less than ten years are still probably entitled to a portion of the benefits earned during that time, but it will likely be paid from one spouse to another.
Former spouses of military members may be able to hold onto base privileges such as commissary and theater privileges. In order to be entitled to those benefits the spouses need to be married for at least 20 years, and those 20 years need to have overlapped with military service. If you meet these requirements you will also be eligible for healthcare services under Tricare, provided that you do not remarry.
Military divorces are governed by both the laws of the state that the divorce is taking place in and federal law that applies to service members. The military requires service members to provide “adequate” child support to their children. Most branches of the military have their own rules about the specific amount that needs to be paid. States also have their own formulas that will calculate a presumptive child support amount. Service members will need to make sure they follow both the military’s and the applicable state’s rules around child support. Ex-spouses who are owed back child support from a military spouse can go through the military in addition to civil courts to try to access support that is owed.
The military also may offer certain benefits for service members going through a divorce. For example, some bases may have attorneys that can assist you, though generally they will not be able to represent you during the divorce. You will probably need the services of a skilled divorce attorney knowledgeable in the state laws of the governing state. A lawyer experienced in military divorce can help both the service member and non-service member spouses understand their rights and responsibilities during and after the divorce.