LEGAL GUIDE
Written by attorney Scott D. Stewart | Jul 21, 2010

Divorce After 50 - Unique Issues Older Couples Face

The Al and Tipper Gore split has many Baby Boomers examining their own marriages and even more thinking, "how can this happen?"

But happen it does, and the reasons are as individual as the couples themselves. As a Phoenix divorce lawyer, I see more than my share of Boomers who may have moved to Arizona to enjoy the wonderful weather, only to discover they no longer enjoy each other.

Apart from the emotional side of a divorce, an older couple must also examine several issues that impact them simply because of where they are in life. The major income generating years are usually behind them, so careful attention must be paid to the valuation and division of assets, including the primary residence, retirement accounts, investment portfolios and so on.

If a divorcing couple is retired, the division of retirement assets can be complex. You may need to get a Qualified Domestic Relations Order (QDRO), which is a separate court order that covers the division of retirement benefits.

Decisions to be made also include:

• Whether one spouse can receive survivor benefits if the other spouse dies • When each spouse can receive benefits and how to avoid tax penalties • The entitlement to retirement plan contribution made following the divorce • If any loans have been taken out against a retirement plan, how that should be repaid before assets are divided

Social Security benefits cannot be divided in a divorce, but there are rules about them that will impact post-divorce income and standard of living. For example, if you are over the age of 62 and the marriage lasted more than 10 years, you can collect benefits after the divorce on your former spouse's record without a reduction in benefits to your former spouse.

If your former spouse dies, you may be entitled to survivor benefits - 100 percent of your former spouse's Social Security benefit. To qualify, your marriage must have lasted 10 years, you must be at least 60, and you cannot already be entitled to benefits that are equal to or greater than those of your former spouse. In our Phoenix family law practice, we've found that deciding who gets the house also takes on greater significance when you are older. If you own a home with lots of equity, it could be used for a reverse mortgage when you reach age 62. Reverse mortgages are popular vehicles for older Americans to generate income.

Eligibility for tax benefits, exemptions and waivers also come into play when you're older. If you are not yet 65 and don't qualify for Medicare, obtaining individual health insurance will likely be another issue you will face. If you are covered under your spouse's employer-provided insurance, COBRA laws allow you to stay covered for up to 36 months following a divorce. However, you will be responsible for paying those premiums.

Some national organizations offer individual health insurance coverage for members, and that may be a good place to start if you need to look for new individual coverage.

A good Phoenix divorce lawyer will be able to consult with you on all of these issues and more that face those who divorce in later life. Most of us take pride in being able to help couples of any age face a divorce with dignity and grace, in respect to all those years you shared a life together.

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