Divorce after 50, or Gray Divorce as it is often called, presents unique issues not generally found in divorces among younger people. There are likely no minor children, but the couple has accumulated more assets than younger people since they have been married longer.
Two main issues that are challenging in a Gray Divorce are: How to divide the retirement plan; and will one spouse be entitled to spousal maintenance.
Many people count on one spouse’s retirement plan to take care of them in their retirement days. For example, a spouse who has stayed home and raised the family has been counting on the other spouse’s retirement funds as their own. In a divorce, the funds in the retirement plan that were accumulated during the marriage will usually be divided 50/50.
The spouse who worked may be resentful because he or she feels that they are losing half of their retirement plan. There are steps that must be taken to determine if all the funds are community property, or did the plan exist prior to the marriage so that some of the funds are separate property.
There are situations where each spouse has a retirement plan from their own years of employment. Often, they agree to each keep their own retirement funds without a need to divide the funds in either plan.
Although the couple can agree on how the funds should be divided, or a court can order the funds divided, the court’s order cannot be enforced without a separate order to the plan administrator. This order is referred to as a QDRO. Each plan has a different set of requirements.
A Qualified Domestic Relations Order (QDRO) is a separate order from the divorce decree. It specifically instructs the retirement plan administrator on how the funds are to be awarded and how much goes to the spouse who owns the plan and how much goes to the other spouse. If the couple fails to obtain a QDRO, the funds will not be divided even if they agreed to a division and if a court ordered the division in the final divorce decree.
When there has been a long-term marriage (at least 10 years), courts are likely to order spousal support where one spouse has not worked outside the home during the marriage and does not have a set of skills to easily geta job to support him or herself. Therefore, a longer marriage may mean long-term spousal support time period.
The purpose of the support is to provide for a spouse who has stayed at home and taken care of the family. It is also intended to give the spouse who has not been employed the opportunity to get the training necessary in order to reenter the job market.