Many divorces happen later in life for a variety of reasons. Couples may drift apart emotionally. The husband and spouse may develop different interests. One partner may be having an affair.
Some couples stay married while the children are in the home but may want to divorce when the children go to college or leave home. Whatever the reasons, divorce after 50 poses many challenges and legal difficulties.
An experienced family law attorney can help spouses through this difficult time.
The core legal issues that need to be addressed for older spouses are:
1. Deciding Whether To Keep Or Sell The Marital Home
The main asset that needs to be divided is the marital home. When the children are younger, there is a strong tendency to demand that the children not be removed from the home they grew up in.
Divorce is hard enough on children without requiring that that they move to a new home or new town. With older children or if the children are in college or have left the marital home, the need to keep the house for the children is not as important.
Still, a wife or husband may not want to leave the family home because of all the memories and the associations with friends, family, and job.
A skilled divorce lawyer will review:
- The emotional and practical concerns with moving to a new location
- The obligations to the children
- The financial pros and cons.
It may be easier to buy out your spouse’s share through the other marital assets such as bank accounts and retirement savings. On the other hand, if the home has a lot of equity, it also may make financial sense to sell the home and use the equitable share to start a new life.
2. How To Handle Marital Debt
Many couples accumulate debt while they are married. If they have a home, any outstanding mortgages must be paid. If there are credit card debts or loans to pay for a child’s education, those debts must be paid.
The creditors will only be concerned with which spouse or spouses borrowed the money.
An experienced divorce lawyer will review the debts and work to negotiate (or obtain through trial) a fair resolution of which spouses are required to pay which marital debts and in what amounts.
Often, a sale of a home means the debts can be paid when the home is sold rather than making payments over a period of years. Any joint credit cards should be cancelled immediately.
3. Health Insurance After The Marriage Ends
Most spouses 65 years of age and older should be eligible for Medicare. If a spouse is on their co-spouse’s insurance policy, then a divorce typically ends the right to be on the other spouse’s insurance policy.
Obtaining new insurance may be quite expensive after someone reaches 50 years because they are a higher risk for getting ill. COBRA insurance may be available to the spouse who loses insurance after being dropped from a co-spouse’s policy but it is normally much costlier. There may also be pre-existing insurance issues if a policy is terminated.
4. The Right To Retirement Benefits
Many spouses over 50 have earned (vested) the right to get pension, IRA, and other retirement benefits paid when they reach retirement age. Retirement benefits earned during the marriage, in whole or in part, are generally considered marital property.
This means, for example, that a wife is entitled to a sizable portion of the retirement benefit when it vests.
An experienced divorce lawyer works with financial professionals to determine how much the non-working spouse is entitled to in either a lump sum amount or in monthly payments when the working-spouse takes his/her benefits.
5. The Right To A Spouse’s Social Security Benefit Amount
Spouses over 62 who were married for 10 years or more and who are not currently married can get a higher Social Security payout if their former spouse is entitled to a higher Social Security check than they are.
Social Security benefits increase the longer a person waits to take them. A skilled lawyer reviews your rights to higher Social Security payments through a former spouse and how that right can be used to negotiate a better divorce settlement.
6. Spousal Maintenance
In Texas, spouses can be awarded alimony for several reasons. One age-related reason is that a spouse can ask for alimony if the marriage lasted more than 10 years and the non-working spouse is unable to support them self.
There are many factors that the family court considers in whether to award alimony. One key factor that applies to all parts of an over-50 divorce settlement is the distinct possibility that the other spouse may die.
For this reason, it is usually better to negotiate a settlement that doesn’t defer payments but rather requires that the marital assets be divided or transferred in a short time period.
7. Conservatorship Of The Children
Texas generally designates a parent as a joint conservator or a sole conservator. The conservators generally make decisions about the child’s upbringing such as where the child goes to school, who has access to medical and school records, what religion the child will follow, and other daily decisions.
In most cases, both parents are named joint conservators which means they share how they key decisions are made. A parent may be named a sole conservator if the other parent has a history of child abuse, drug abuse, family violence, or has been absent in the child’s life.
Parents can also share physical custody of the child which means the spend times with each parent at least 35% of the time. Otherwise, the child generally stays with one parent and visits with the other parents.
With older adults, the children are also older too. If the children are over 18 years of age, then establishing a conservatorship for the child is generally not an issue.
For children under 18, the court is not likely to change any existing order unless there is a change in circumstances. As children age, they have some say in the decision about where they live (with which parent).
8. Child Support
The duty of the parents to provide financial support generally ends at 18. Still, it is a good idea to review financial matters with your divorce lawyer if a spouse is 50 or older.
Many children want to go to college which is quite expensive. Older children often rely on their parents for financial support. Parents of older children can consider establishing trusts that can be used for their financial support and for other reasons if something happens to either parent.
Contact Scott M. Brown & Associates Today
To discuss your rights if you are getting divorced after age 50, and to fully understand your options, make an appointment with the Scott M. Brown & Associates by calling 281-972-4386 today. We have office locations in Angleton, League City and Pearland.