You’ve likely heard the term “gray divorce,” but you may not recognize the significance of your financial rights and your future. The fact is that divorce after a long marriage can be far more challenging, even without child custody concern. If you are facing a gray divorce, you shouldn’t wait to consult with an experienced Round Rock divorce lawyer for seniors.
Where You Are in Life
While the financial implications of divorce are significant regardless of age, the matter is much more considerable when you’re nearing retirement and may not have a lot of opportunities to gain greater financial stability. As such, if you’re facing a divorce while approaching your senior years, the matter of your financial rights requires careful consideration.
Your Children Are Likely Grown
Gray divorce generally bypasses concerns related to child custody and child support because your children are likely grown – or close to it. However, if you are the primary custodial parent of a special needs child who requires care into adulthood, child support may apply.
Further, gray divorce can significantly affect the division of marital property and alimony – or spousal maintenance.
Your Situation
Your situation as someone divorcing later in life – after a long marriage – will guide how the relevant divorce terms are resolved. If, for example, your spouse was the breadwinner while you supported their career and took care of your home and children, the financial circumstances are very different than they would be if you and your spouse both forged successful careers.
Higher Assets
After many years of marriage, chances are good that you’ve amassed more assets than younger divorcing couples have. The higher your assets, the more challenging they can be to divide between you fairly. The following factors can influence the division of marital property:
The more significant your marital estate, the easier it is for your spouse to hide value, spend down assets, or engage in any other form of financial hijinks. This is especially true if your spouse is more involved in your family’s finances than you are.
Business ownership, ownership of multiple properties, and joint financial ventures all tend to present unique financial challenges in the face of divorce.
Putting a value on a specific asset – especially one that is complicated in terms of ownership or anything else – can lead to serious complications, and serious disagreements on such matters are not uncommon.
The longer the marriage, the murkier the line between separate and marital assets is likely to become.
Is It Separate Property or Is It Marital Property?
Distinguishing between separate and marital property is a primary concern in most divorces, and the matter is often more complex when it comes to gray divorce.
Marital Assets
In Texas, marital property refers to all the assets that you, your spouse, or both of you together came to own while you were married, and this includes while your divorce is pending. If you attained the property while you were married, it’s very likely marital property – with very few exceptions. The following types of property generally aren't considered marital property:
Gifts that were given to only one of you, which can include a gift that one of you gives the other
Inheritances that one of you received in your name alone
Personal injury awards that one of you received as compensation for pain and suffering you endured
Separate Assets
Anything that either of you owned before marriage and that you kept separate during your marriage is a separate asset that belongs to the original owner alone. However, it’s important to recognize that the distinction between separate and marital assets is more likely to fade over a long marriage.
Any of the following situations can play a role in causing separate assets to lose their distinction:
An intermingling of finances
The use of marital funds to bolster a separate asset
The addition of the other spouse’s name to an asset’s title
Use of the asset as marital property
The court begins with the presumption that all property is marital property. If either of you wants to claim an asset as yours alone, the burden of proving its separate nature falls to that spouse.
Factors Considered
The matter of whether an asset is marital or separate isn’t always straightforward, and factors like the following can all play a role:
The source of the funds used to purchase the property
The manner in which the property is titled – if it is
How the asset is maintained
How the asset is treated over the course of your marriage
When an Asset Is Both Separate and Marital
When a separate asset increases in value while a couple is married – the way real property and financial tools often do – the increase is very likely to be considered marital. For example, if your spouse came into the marriage with a retirement account, the value at that point is a separate asset.
Over the long course of your marriage, however, the value of the account is likely to increase significantly, and this increase in value is very likely marital, which means it will need to be divided between the two of you fairly upon divorce.
The Factors that Affect Property Division
If you and your divorcing spouse are unable to resolve the matter of property division between yourselves, you’ll need the court to do so for you. Texas courts divide marital property in a manner that is considered “just and right,” which can mean equally but doesn’t necessarily mean equally.
When making such determinations, judges take a range of primary factors like the following into careful consideration:
Each spouse’s separate estate
The overall size of the marital estate
Each spouse’s age and overall mental and physical health – including any significant discrepancy in age
The duration of the marriage
Each spouse’s level of education, career history, business opportunities, and earning power
The degree to which either spouse supported the other’s career
Whether fault played a role in the breakdown of the marriage – even if the divorce is no-fault
Whether either spouse engaged in dissipating marital funds or other financial wrongdoing in the buildup to divorce
Each spouse’s financial obligations
The contributions each spouse made to the marriage, including in the form of childcare and homemaking
The tax consequences of the property division under consideration
Each spouse’s personal retirement accounts
Any gifts either spouse gave the other
If you and your spouse have a legally binding prenuptial or postnuptial agreement in place, the included terms will guide the division of your marital property. Entering a prenuptial or postnuptial agreement that carefully addresses the division of marital assets in the event of divorce can help to take the guesswork – and the stress – out of the equation.
Alimony
Alimony doesn’t play a role in every divorce. However, alimony is far more likely to apply in a divorce after a long marriage. Alimony is designed to help the recipient provide for their own reasonable needs – in relation to the standard of living achieved during the marriage – when the payor has the financial means to help.
Generally, alimony is intended to afford the recipient the time they need to gain financial independence through education, job training, or acquiring job skills. However, if you’re nearing retirement age or are already there, this component is unlikely to apply. As a result, longer-term or even permanent alimony – in highly specific circumstances – may be awarded.
Factors that Affect Alimony
Texas courts consider a range of factors when they make alimony determinations, including all the following:
The financial resources divorce leaves each spouse with
Each spouse’s separate assets
The impact the spousal maintenance payment will have on the payor’s other financial obligations
Each spouse’s contributions to the other’s overall education, job training, or increased earning power
The recipient’s age, work history, overall physical and mental health, and earning capacity
Each spouse’s education and employability – as well as the amount of time the recipient would need to become financially independent, which can be less relevant to those going through gray divorce
Whether either spouse engaged in inappropriate financial maneuvers to artificially increase their own estate
Whether domestic violence is involved
The contributions each spouse made to the marriage, including in the form of homemaking and childcare
Either spouse’s misconduct – a potential recipient of alimony whom the payor can prove engaged in adultery during the marriage may not be eligible
Alimony Basics
Every alimony case is decided in accordance with the circumstances involved, and there are no guarantees. There are, however, basic guidelines. In the case of seniors who are divorcing, the issue of alimony is based on the marriage having lasted at least ten years and the recipient lacking the income and earning potential necessary to provide for their own reasonable needs.
How Earning Ability Is Calculated
When it comes to determining one spouse’s earning ability in relation to alimony, Texas courts consider the financial resources available to each spouse and each spouse’s overall education and employment skills. Additionally, the amount of time the recipient would need to obtain the education or training necessary to gain financial independence is considered.
How Duration Is Established
Texas courts generally set clear parameters when it comes to the duration of alimony, and the basic guidelines include the following:
Alimony generally isn’t ordered for more than five years for marriages that lasted 10 to 20 years.
For marriages that lasted 20 to 30 years, the outside limit for alimony is generally seven years.
For marriages that lasted 30 years or more, alimony generally won’t be set for more than ten years.
While permanent – or long-term alimony – is rare in Texas, it is sometimes awarded in unique situations in which the recipient can demonstrate significant need and inadequate resources.
FAQ
Is gray divorce really any different than any other divorce?
Every divorce is unique to the situation and the individuals involved. The fact is that when a couple divorces after many years, the financial component can be that much more challenging.
I’ve been blindsided by divorce after a long marriage. What should I do?
Facing a divorce after being married for many years can come as a shock, and the most important first step you can take is reaching out for the skilled legal guidance of a dedicated divorce lawyer for seniors.
How can I protect my financial future?
The sooner you consult with a skilled divorce lawyer for seniors, the better protected your financial rights and financial future will be.
Turn to an Experienced Round Rock Divorce Lawyer for Seniors
Brett Pritchard at The Law Office of Brett H. Pritchard is a trusted divorce lawyer for seniors. He understands the challenges that those facing gray divorce experience and has the experience and legal insight to help. Learn more by contacting or calling us at 254-781-4222 and scheduling your free consultation today.
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