Divorce Litigation Bullet Points 11: Senior Divorces and Retirement Assets


Upset couple having a disagreement at the beach

I’ve been updating my blog regularly recently with bullet point lists designed to curate some of my older articles and insights on divorce litigation into bite sized chunks. These guides might prove useful to you if you have questions about divorce litigation and want to get answers quickly. Today, the focus of our guide will be on senior divorces, and the unique issues that need to be addressed when an older couple parts ways.

There are many reasons that a couple may choose to pursue a divorce later in life, and like with younger couples, these individuals may find that alternative dispute resolution options like mediation aren’t suitable for them.  I am always a fan of mediation for couples of all ages, but, when an agreement cannot be reached outside of court, that is the reason we have judges.  If you’re considering litigation later in life, you may need to consider some of the issues I address here.

Concerns in a Senior Divorce

Just like younger couples, older partners have a lot of concerns to consider when talking to a divorce lawyer. One thing I regularly notice about divorces taking place between older partners, is that there is sometimes a different set of concerns in play with these couples than the worries that may have taken precedence in their early years. Though parenting time and issues for a child custody attorney may still be an issue, more common concerns are pensions, 401ks and who gets the family house.

  • In senior divorce cases, financial issues can be particularly crucial because if both people involved are already retired, there’s less likelihood of either spouse being able to create new income. Retirement assets will need distribution with this in mind.
  • Another financial consideration will have to do with the way property is divided between two parties. There’s a chance that the courts may suggest selling the house, but it may not be possible for one of the parties involved to move into a new home without significant unease.
  • If one spouse receives the family home in an equitable distribution agreement, the other will usually receive something of equal value to balance this out. In some cases, this could be money, a greater share of a pension or a smaller maintenance obligation. Senior couples will need to think carefully about things like pensions, retirement plans, and 401ks.
  • Just like any couple going through a divorce, a senior couple will be best-prepared for litigation when they discuss their circumstances in depth with an attorney. In cases with senior partners, it may also be helpful to seek assistance from other professionals, like financial advisors and accountants.
  • While children often play less of a part in mature and senior divorces, they can still play something of a role. It’s worth noting that while you might not have to worry about who has the right to raise your children, you may need to consider how your children will factor into your future.

Distributing Retirement Savings

In a senior divorce, one of the most significant concerns for the couples will be determining how retirement savings should be split between the parties. Retirement assets like annuities and IRAs are important considerations, just like homes and personal belongings.

  • Retirement savings are often some of the most valuable assets that any person owns, depending on their circumstances and their ability to earn future income. Unfortunately, retirement savings come with unique intricacies to consider. These packages of money are subject to various complex factors, including tax implications, which can make them harder to divide.
  • As a dedicated divorce attorney I attempt to give my clients the best possible guidance when they’re making financial decisions. However, they may need to seek out additional support and guidance from financial professionals too. No matter the circumstances, proper handling is essential to ensure that the right party is held responsible for paying any applicable taxes.
  • Divorce lawyers dealing with senior divorce litigation cases should always have a solid grasp on how the division of retirement assets works. Remember that there can be various intricacies such as post and pre-retirement death benefits to consider, and shared interest pensions.
  • It will be up to the courts to determine how you should share the savings that you have in your retirement funds applying the law of equitable distribution in New York. Equitable distribution sounds like equal distribution, although that is not the definition of equitable.  Equitable means what’s fair. In certain cases, assets that have been built up within a retirement account may be awarded to one party- however this will only happen when certain circumstances are applicable in the discretion of the court.
  • In some cases, you may need to look into the division of a defined benefit pension plans, which comes down to the use of a Qualified Domestic Relations order. This is a decree that is made under domestic relations law to relate to the distribution of tax deferred benefits like pensions.
  • Social security is not something that can be argued or negotiated in family law, either through collaborative law, mediation, or litigation. Social security is something that must be determined through the federal law of social security. Social security income though might come into play when running the guideline calculations though for maintenance. The guidelines suggest the presumptive amount of maintenance (alimony), based on the income of each party and the duration based on the length of the marriage.
  • As the social security administration outlines, in most circumstances, if you were married to your previous spouse for a minimum of ten years and you undergo a divorce, you may be able to qualify for a benefit based on your former spouses work history.

Divorce and Social Security Benefits

When mature people get divorced, there are various unique concerns to consider, ranging from how retirement and qualified plans will be distributed, to what kind of benefits you might be eligible to apply for. At the same time, you still have all of the common concerns of divorce to think about that any couple will need to encounter when ending a marriage.

If you have any concerns about the issues addressed above, please read through the blogs on this website for more information. You can also contact me to discuss your divorce case in depth. I’m available either via phone at (516) 333-6555, or via my online contact form. Your first initial consultation lasting up to 30 minutes is available for free, and can be held in person, over the phone, or via video conferencing (Zoom).

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