In recent years, and for a myriad of reasons—the aging of the Baby Boomer generation, rising life expectancy, and evolving social norms—there has been a proliferation of divorce among couples over the age of 60.[1] Dubbed the “gray divorce,” this phenomenon poses a unique set of considerations and challenges for couples considering a later-in-life divorce:

Retirement Planning

If you are considering a “gray divorce,” it’s likely that you are nearing retirement, if not already retired. Your retirement accounts comprise a significant portion of your assets, and a “gray divorce” may very well threaten to put those accounts—and the retirement plans you envisioned for yourself—in jeopardy. Not only is there less time to compensate for any financial loss, but there is also less time to rebuild retirement savings. Therefore, the efficient division of retirement assets is particularly crucial to ensure your financial stability following a “gray divorce.”

Estate Planning

Under Illinois intestacy law, a surviving spouse receives one-half of the estate if the decedent has children, and all of the estate if the decedent does not have children.[2] This means that if there is no final decree or judgment of divorce, your spouse retains the right to a share of your estate. Because a prolonged period of time may transpire between when you decide to pursue a divorce and when your divorce is ultimately finalized, it is critical that estate planning documents are updated to reflect your new circumstances as expeditiously as possible.

Maintenance

In Illinois, when determining whether an award of maintenance (spousal support) is appropriate, courts consider, among other things, whether you or your spouse’s earning capacity has been diminished due to devoting time to the marriage.[3] This means that if you have been out of the workforce for several years to raise a family, you might be entitled to maintenance to ensure your standard of living remains the same following the divorce. Conversely, if maintenance is awarded to your spouse, there is the risk that this unanticipated expense might deplete your savings and resources well beyond retirement age. Whatever the case may be, it is important to consider whether you or your spouse will be awarded maintenance and the implications a maintenance award will have on your financial future.

The Marital Residence

For anyone going through a divorce, the thought of moving out of their home is emotionally daunting. This is especially so if you have lived in the same home for several decades. Therefore, it is not unlikely that both you and your spouse will desire to retain the marital residence—or other meaningful real estate assets—whether that be for the sake of your adult children and/or grandchildren, or the desire to retain a semblance of familiarity as you enter your next chapter. Of course, whether you can—and should—retain your residence requires careful consideration and a pragmatic look at your financial circumstances at the outset of the divorce.

It is important to obtain sound financial and legal advice to tackle the unique challenges attendant to a “gray divorce.” Beermann LLP attorneys are well-versed in the area of matrimonial law and handle such matters routinely.

Thomas T. Field, Equity Partner (JD/MBA/CFL)

For more information on Mr. Field, please visit:
www.beermannlaw.com/team/thomas-t-field.

 

[1] Jocelyn Elise Crowley, Gray Divorce: What We Lose and Gain from Mid-Life Splits, (2018)

[2] 755 ILCS 5/2-1 (a-c)

[3] 750 ILCS 5/504(a)(4)