Middle-aged and older spouses have the same issues as other couples when they separate and divorce, although they are viewing them from the other direction. They don’t usually have any minor children but they often have substantial assets. People in second or third marriages are more likely to have premarital agreements or “prenups” that dictate what must be done about property and alimony if the couple splits. Another likely scenario of those with silver hair and more than one marriage under their belts is tracing property. In our state, tracing is used to decide what share of an asset is separate property, and what share, if any, is marital property. This is expensive and time-consuming especially when addressing real estate, investment and retirement accounts. Therefore, this article assumes all assets are marital property and that there is no premarital agreement.
Alimony & Expenses
North Carolina courts must consider the incomes and reasonable expenses of both spouses in alimony cases. Spouses who are nearing age 65 are facing Medicare and “doughnut hole” insurance instead of private insurance. Medicare could make things better or worse financially when compared with the health, vision and dental insurance offered by a spouse’s employer and whether the employer paid at least part of the premiums. Settlements and court orders for people nearing 65 typically take this into account, changing the amount of support once one or both spouses have Medicare coverage. Older spouses routinely lose loved ones and inherit property. While inheritances are usually considered separate property, assets such as rental property or investments are considered income for purposes of alimony.
Alimony: When Should You Retire?
When alimony is looming, parties may bicker about the reasonable age that the breadwinner or the financially dependent spouse should retire. Although it is extremely rare, I’ve actually had a case in which the judge ruled that the breadwinner couldn’t afford to retire at a certain age. Of course, he was legally free to retire any time but his alimony was still ordered based on the same income he had from his employment. Judges consider a number of things when deciding if someone should be able to retire for purposes of determining income for an alimony case, including age, health, work history and whether the spouse is genuinely ready to retire or just saying that for court.
Parties might dispute the choice of a retired spouse not to charge adult children for work-related childcare of grandchildren. Spouses can disagree about the timing of a spouse electing to receive Social Security retirement payments, which vary in amount depending on what age the person is. Life insurance becomes more important when dealing with older spouses, particularly if a spouse is depending on alimony that ends if the other spouse dies. When someone retires, they often lose the term life insurance that is offered by many employers. Another dilemma can arise when the policy was purchased when the insured spouse was young because the cost of buying that protection now would be prohibitively expensive.
Marital Property
Divorcing couples may decide that it makes sense to have one spouse stay in the home and “buyout” the other spouse’s share, which might take less time and involve less risk than trying to sell it. When there is no mortgage to consider, the cost for that buyout can be too high when there aren’t lots of liquid assets to make up for it. In that event, they will probably end up selling the home and dividing the proceeds, which might raise tax issues if a spouse doesn’t intend to purchase another home with his or her share of the sales proceeds.
Couples who are retired don’t usually have the same opportunity to rebuild financially as those who divorce in their thirties or even forties. So, when pensions or other retirement benefits are the only income besides social security, dividing them equally is a financial hit that can’t easily be absorbed. There are tax penalties for those who take a distribution of money from their retirement before 59.5 years old. On the other hand, when there are IRAs or other accounts that allow owners to choose the dates and amounts of money to withdraw, there might be RMDs (required minimum distributions) of retirement. When spouses have multiple retirement vehicles, some might be taxed differently, such as the Roth IRA versus the traditional IRA. Accordingly, each one has advantages and disadvantages even if they appear to be equal in value. Other benefits might be tax free, such as military disability, which is separate property but counts as income for alimony.
