Divorce Considerations if You’re 55+

The divorce rate has doubled for adults aged 55 to 64 since the 1990’s, according to the National Center for Family & Marriage Research. If you find yourself in the category of middle age to senior divorce, there are some important things to consider:

First, if you had children during the marriage they are likely adults, and with the exception of a disabled child, you won’t be receiving any child support for adult children, even if they are not yet independent and live with you. And, California does not require parents to pay for the college educations of their children.

Second, because California says the normal retirement age is 65, if your higher earning spouse is nearing retirement and in fact chooses to retire at age 65, you may be left with little or no spousal support aka alimony. Earlier retirement ages may be available for some government workers, such as law enforcement officers.

This means that identifying, valuing and dividing assets in a community property state like California becomes of paramount importance in your divorce. This is not the time for a do-it-yourself divorce because failing to properly identify, value and divide a valuable asset, such as your spouse’s retirement plan, can have a serious negative impact on you that may last forever. For example, two assets of similar value may be taxed very differently, which means one asset is worth substantially less than the other. Consider the following scenario: Assume the equity in the family residence is equal to the value of husband’s 401(k) retirement. Wife takes the family residence while husband takes his 401(k). After the divorce is final, the wife will be able to sell the residence and pay no tax (under current tax law) on the first $250,000.00 of net profit. On the other hand, the husband will begin to pay taxes when he starts taking withdrawals from the 401(k). Therefore, the two assets are not of similar value.

To make matters worse, in the case of In re Marriage of White (1987) 192 Cal.App.3d 1022, the Court of Appeal held that it is not double dipping “to treat a pension as marital property, award it entirely to the earner spouse (with an offsetting award of martial property to the nonearner spouse) and then to take the earner spouse’s receipt of pension benefits into account in determining whether there should be any alimony award to either spouse.” In other words, if you trade your interest in the house in order to keep your pension, you could end up paying spousal support on the income you receive from your pension.

Hiring experienced attorneys to help guide you through these issues is a solid return on your investment.