In recent years, there has been an increase in the number of couples who are getting divorced later in life. In some cases, they are getting a divorce after retirement. This is commonly referred to as a “gray divorce.” While the process is the same for a divorce after so many years of marriage, no matter the age of the litigants, there are some issues that are directly impacted by a gray divorce. Many men and women are concerned about what impact a divorce after retirement might have on their rights to their spouse’s pension or other retirement accounts, as well as what effect it may have on their rights to alimony.
What Happens to My Retirement Accounts and Pension Sharing If I Get a Divorce After Retirement?
Through the process of equitable distribution, a couple who is divorcing will share the marital portion of their accrued retirement benefits. The marital portion is defined as what was contributed from the date of marriage until the date of the filing of the complaint for divorce. In many cases where the divorce is after retirement, the parties have been married for much of their lives, and therefore the majority of the retirement benefits or pension benefits are marital. Generally, the marital portion of retirement benefits are shared equally. There is no need to be married for a set period of time to receive half of the other party’s pension. There may be some special issues that arise regarding a pension and divorce if it is already in pay status. For example, some require that you make irrevocable elections at the time that it goes into pay status. This may result in a party electing to have their spouse receive survivor benefits that they may not otherwise be entitled to if they are to divorce later without recourse to modify the designation. However, this is not the case in the vast majority of cases and you will still be entitled to collect your share of your spouse’s pension if the account is already in pay status when you divorce after retirement.
How is Alimony Affected After Retirement?
The alimony statute was amended in 2014. The amendments re-named “permanent” alimony to “open-durational” and specified that open durational was only available to those couples whose marriage was 20 plus years in length at the time of filing. The amendment also modified the law to create a rebuttable presumption of good faith retirement upon the person attaining their social security retirement age. When a person who is paying alimony to their former spouse reaches their social security retirement age and actually retires, he or she may make an application to terminate their alimony obligation based on this retirement. The Court will consider a number of factors when faced with this issue, including the ages of the parties, how long the party paying alimony has been paying, and the ability of the party receiving the alimony to save and accrue further assets.
In a situation where the parties are approaching or getting the divorce after retirement, the question of alimony will be a very different one. If the parties are beyond their retirement age, it is likely that the case will focus primarily on the distribution of their marital estate rather than providing one spouse with alimony. This is because, as explained above, each spouse will be receiving their share of the pension or retirement account through equitable distribution. If you were using the pension payments as “income” while you were married, you cannot double dip with both your half of the asset, plus alimony. When the parties are not yet retired but are approaching their retirement age, it may be specifically addressed that any alimony to be paid is for only a set, limited period of time despite the long-term marriage. Approaching the issue of alimony in this manner may keep the parties from having to return to court only a few years later to address a retirement.
If you have questions about divorce after retirement, schedule a consultation with DeTorres & DeGeorge.