Late-life Divorce

By Nicola Bridges

May 21, 2018 5 min read

Though divorce is becoming less common for younger adults, "silver" divorce is on the rise. According to a 2017 Pew Research Center study, the divorce rate for people who are 50 or older has roughly doubled since the 1990s. But before you cut ties and burn the marriage certificate, there are specific considerations for divorce late in life.

Relationship coach and counselor Jonathan Bennett, co-founder of Double Trust Dating, says that on the plus side, a late-life divorce can be freeing. "For people who married young and watched their marriage turn into an exercise in misery, a divorce later in life can be a liberating experience -- a fresh start to finally live life on your terms after years of feeling trapped in a marriage you hate."

But divorce can be very scary after relying on your partner for decades. As Bennett notes, there's a lot to untangle. "The longer you're married the more shared history you have together, including assets," he says. "If the divorce is hostile, it can mean extended fights over property, bank accounts and pretty much everything else. You have a lot more to fight over." However, divorcing later in life can be less contentious because you no longer need to worry about child custody or support with grown children.

Finances are of critical importance -- especially making sure you are protected in retirement. "When we represent the working spouse, who might have a spousal support obligation, we want to ensure that our client can retire at a reasonable age," Bennett says. "This can become particularly contentious when a nonworking spouse has been out of the workforce for significant time and may not be able to find work."

Divorce attorney Andrew Winters says that whereas younger divorces are about parenting plans, silver divorces are mostly about money. "When older couples divorce, their retirement savings suddenly seem inadequate," he says. "Usually, assets are divided to put parties on equal footing going forward." Winters says that if one spouse earns significantly more than the other, then alimony may be awarded. However, the amount and duration of alimony in these situations is difficult to set, as neither the court nor the lower-earning spouse has control over how long the higher-earning spouse will continue to work. For example, a 65-year-old who makes $300,000 per year might claim that he is about to retire in order to avoid an alimony order, only to continue working for another 10 years after the divorce is final.

Some state legislatures are trying to address this issue. For example, in New Hampshire, a bill is pending that would terminate alimony once the person paying reaches full retirement age. One exception is that an alimony order could continue past retirement age if it reflects an offset for a disparity in Social Security benefits. Under Social Security rules, the lower-earning ex-spouse can elect to take a portion of the higher earner's benefit, but it will be one-half of what the higher earner gets. This new law would allow the court to offset this disparity to put each spouse on equal footing.

Another consideration is that living alone greatly impacts older divorcees' social lives -- which can impact overall health. For that and other reasons, Raffi Bilek, director of the Baltimore Therapy Center, strongly suggests counseling. He says that there is so much history and baggage involved that getting some objective input can make a big difference. "Who can process three, four or five decades of relationship history on their own?" he says. "Couples therapy can help you take a fresh look at some of the things you may have taken for granted for so many years. We get used to things. We get into routines. And we never question some of the things we do or think. Having an outsider come and shake up our perspective can show things in a new light."

Ultimately, Bilek says, before making the decision to divorce, ask yourself and your spouse: What do I need out of this marriage that I didn't need in previous times? Are we capable of changing to meet each other's current needs? Why do we want to get a divorce? Why now? What will life look like for us if we do/do not get divorced at this point?

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