10 Frequently Asked Questions About Divorce Over 50

Getting divorced is never easy, but if you are older and have been married a long time, a divorce can be especially challenging.  Commonly referred to as “gray divorce” in the media, divorces between spouses over the age of 50 have become increasingly common in recent years.  I am often asked many similar divorce questions by clients over 50. Below are the 10 most frequently asked questions:

1. What makes getting divorced after age 50 different?

The divorce statutes in Missouri are the same regarding of your age. However, in a divorce between spouses over 50, financial and insurance issues tend to take on increased importance.  For example, the division of marital assets needs to be viewed very differently when you are over 50.  Keeping the marital home for stability of the children is usually no longer important.  Rather, the division of marital assets is more focused on retirement savings and liquidity to pay monthly expenses.  The determination of spousal maintenance plays a much greater role for both spouses as one may need to reenter the workforce after being out of the workforce for many years and one may no longer be able to retire as early previously planned prior to the divorce.  A younger divorcing couple is more concerned about child custody and child support.  An older divorcing couple is more concerned about health insurance, long-term care insurance, and Social Security benefits.

2. How will I pay my monthly expenses post-divorce?

Getting divorced at any age causes financial anxiety.  However, divorcing when you are 50 or older can heighten that anxiety as you consider the uncertainty of your financial future post-divorce.  Will I have to start over financially? This a common question to ask yourself during this time.  The answer will depend on your net worth and monthly expenses.  The result of your divorce settlement (division of property, an award of spousal maintenance) will determine whether you need to find a job, a new home, dip into savings, etc.  You will want to discuss these questions throughout the divorce process, so you be properly advised as you look to establish yourself as a single individual, perhaps for the first time in over twenty years.

3. How will this divorce affect my retirement savings?

Most retirement savings and plans earned during the marriage are marital property subject to being divided at divorce.  You are generally entitled to an equitable share of you and your spouse’s retirement savings and plans.  However, you should keep in mind that you and your spouse were saving for one retirement household.  Post-divorce there will be two households to support. Therefore, your marital plan for when to retire or how much you are currently saving for retirement each month will need to be discussed as you will be a single individual.  This may result in some simple adjustments to your plan contributions or a major adjustment to your retirement date.

4. Will I be awarded spousal support?

In Missouri, spousal support (i.e., maintenance) is not guaranteed in any divorce unless you and your spouse signed a prenuptial or postnuptial agreement that sets forth the terms for that to occur.  Otherwise, under Missouri law, a court may grant maintenance only if it determines that a spouse lacks sufficient property, including property awarded during the divorce, to provide for his or her reasonable needs; and is unable to support himself or herself through appropriate employment or is the custodian of a child that makes employment outside the home unreasonable. Thus, for a court to even consider awarding maintenance, it must first find a spouse really cannot meet his or her reasonable needs through his or her own efforts.

5. What is the short version of how the court will consider spousal support?

The Missouri spousal maintenance statute gives the court specific direction to arrive at a reasonable sum for maintenance. In general, the longer the marriage, the more likely the court will award some maintenance, particularly if the requesting spouse spent most of the marriage caring for the children. The court will look at the monthly budget of expenses of the requesting spouse, determine what is truly reasonable, and find the gap between expenses and reasonable income. The gap will be the sum for maintenance, subject to the ability of the other spouse to afford it.

6. Can I be ordered to pay spousal support to my former spouse if I am retired?

If a court finds that your spouse really cannot meet his or her reasonable needs through his or her own efforts, then you could be ordered to pay spousal support.  This is fact dependent on the division of retirement savings in your divorce and whether it or other property was used to address your spouse’s financial needs.  The ability to divide retirement can also affect the court’s determination to order spousal maintenance.  For example, if you are receiving VA benefits instead of military retired pay that could normally be divided or receive a monthly payment from the Public School Retirement System (PSRS) that is considered separate property by law, and your spouse has no retirement and was not working outside of the marital home, then spousal support may be awarded by the court even though you are retired.      

7. Can I receive Social Security Benefits under my former spouse’s work history?

If you were a stay-at-home parent or had little or no work history during the marriage, then you may not qualify for Social Security benefits under your work history.  If that is you, then you should determine if you could qualify for partial benefits under your former spouse’s work history.  This should be investigated during the divorce process but can be done even after your divorce.  Your benefits eligibility will depend on several factors including your birth year, the age at which you start claiming benefits, the length of your marriage, etc.  Your monthly Social Security benefit can be an important consideration in your divorce settlement and should not be ignored when divorcing over the age of 50.

8. Should I keep, sell, or be bought out of the marital home?

In most divorces, the marital home is an asset that must be considered during the property division process.  If you and your spouse can reach an equitable agreement regarding this asset that would be best as follow up matters are most likely going to be completed without any issues.  If your property division results in you being able to keep (and afford) the home, you would take the steps necessary to have the deed, mortgage, insurance, utilities, etc. into your individual name.  The award of spousal maintenance may also make keeping the house a viable option.  If not, then you need to determine how you will receive your marital equity from the property, either by sale or by being bought out by your spouse.  There are also tax considerations that affect you staying in your home.  The marital home is a significant asset and needs to be thoroughly discussed in the divorce process so you can make the best decision for your financial future.

9. I was a stay-at-home parent, now what? 

If your role during the marriage was to be the stay-at-home parent or the homemaker or simply a non-working spouse, you may be concerned about having to find a job post-divorce.  If you didn’t finish your education or have been out of the workforce for more than 10 years, you may not know where to begin in making your next life decision. However, going back to finish your education or restarting a career post-divorce is possible, and you should develop a post-divorce life plan.  This plan can then be discussed so your lawyer can work toward helping you have the answers and resources you need to obtain further education or training as required.  If finances dictate that you will need to obtain further education or training, it is important for your lawyer to know how long it may take you to get back on your feet post-divorce.

10. Will I need to obtain my own health insurance after divorce?

Securing health Insurance is often critical in an older divorce, and particularly so if you have preexisting health issues.  If your spouse has coverage through his or her employer, you will not be eligible to remain on his or her health insurance plan once a Judgment of Dissolution of Marriage is entered by the court.  Continuing coverage through COBRA Is an option, but such coverage may be too expensive for you, especially if you are paying monthly expenses from retirement income.  You need to know all your options and costs for health insurance coverage during the divorce negotiation process so your attorney can use this information for purposes of negotiation or presentation at trial.

Should you need the assistance of an experienced divorce over 50 attorney in Creve Coeur or have questions about your divorce situation, know that we are here to help and ready to discuss those questions with you.

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