Navigating Gray Divorce | Divorce Attorney Advice for Baby Boomers
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Navigating the Unique Challenges of Gray Divorce

Mar 15, 2021 | Divorce Law

By Nelson Garcia, (301) 563-6685

navigating gray divorce

This blog is a related follow-up to the one I wrote last month entitled “Surprising Facts About Gray Divorce in the U.S. and Tips for Addressing Typical Risks.” Here I address some of the most important issues and related legal aspects that typically arise in such divorces.

Again, a “Gray Divorce” refers to divorce among seniors (50 and older) after a long-term marriage, typically at least 20 years. However, that period can be shorter for older seniors (typically at least 65). One of the most surprising facts that I highlighted last time is that Divorces between couples over the age of 50 have more than doubled in the past two decades.

Among the most important and trickiest issues for divorcing baby boomers are the following:

Identifying Pre-Marital Assets

A big part of the divorce process entails separating your shared marital assets. Step one in that process is identifying which assets are part of your marital estate and which assets are pre-marital possessions. This would be pretty easy if you had only married your spouse two or three years ago, but after several decades of being together, memories tend to blur together. Also, pre-marital assets can get mixed into marital assets, such as if your husband used money in his pre-marriage savings account to buy your house after you were married. Does that money still belong to him, or is it now part of your shared asset? You will need a good attorney to properly advise you as to this and the related legal concepts in Maryland of ‘Commingling” and in the case of pre-marital or other non-marital property, the legal concept “Contribution” and whether such apply to your case.

Finding and Dividing All Marital Assets

When you’ve been together for a long time, decoupling can get a little complicated. A young broke couple won’t need to work too hard to identify and divide up their few assets. Older couples, however, have had decades to build up a complex portfolio of savings, investments, and asset holdings. As you start your divorce process, make sure you collect as much paperwork and documentation as possible so that you can identify every asset you and your spouse own. This information gathering will be very useful when filling out the Marital and Non-Marital Property, Form 9-207 that you will have to file later in Court, but most attorneys find very useful in trying to understand and settle your case.

Health Insurance

The 50-65-year-old age group has traditionally been a difficult group to be a part of when looking for affordable insurance coverage. Suppose you are currently under a spouse’s coverage. In that case, there could be a long void until you are eligible for Medicare at age 65, and even then, covering healthcare-related expenses isn’t cheap. Typically, a person can be covered by the spouse’s employer-related health insurance only until the date of divorce. So if the spouse losing the coverage will be unemployed or cannot obtain such from a new employer, he/she must negotiate an additional amount of Alimony sufficient to obtain health insurance on their own. Alternatively, under the Consolidated Omnibus Budget Reconciliation Act (COBRA), you may qualify for continued coverage under your former spouse’s group plan for up to three years. However, COBRA benefits are limited in that you or your former spouse now have to pick up the tab for the premiums. You should figure out a long-term solution to healthcare before getting into the nitty-gritty of divorce.

Social Security

When couples divorce at or above the age when they become eligible to collect Social Security (currently 62), their records must be examined to calculate the amount each individual is eligible to receive.  It is essential to know that although you are not eligible to receive Social Security in retirement if you did not work at least ten years, gray divorcees may qualify for benefits based on their spouse’s earning history if they were married at least ten years, even if they have not worked for a full decade.

Retirement Accounts and Pensions

(1) Your typical retirement account is an employer-provided “Defined Contribution Plan” (the most common type of which is called a 401(K)) as to which the employee makes pre-tax contributions into an account in the name of the employee and the employer can make contributions of a fixed percentage of the employee’s salary into the account. Generally, the money accumulated over the time the couple was married is split equally. This means that whatever a party earned of such plans before marriage remains that party’s sole and separate property at divorce. (2) By contrast, in a “Defined Benefit Plan,” there is no specific account maintained separately for a particular employee. A traditional pension plan is the most common type of Defined Benefits Plan. Employees know that if they work for a company or the Government for a certain number of years, they will receive a monthly benefit of a certain dollar amount for the rest of their lives after retirement. Such is becoming extremely rare to non-existent in private business employers but are standard in employment with the Government. At divorce the above concept of splitting only the portion applying to the period the couple was married also applies to pensions. The split at divorce is determined by formula (such as the “Bangs Formula” applied to Government pensions). One critical aspect of Gray Divorces is figuring out how to divide an employment-sponsored retirement plan. The attorneys at Andalman & Flynn can help you with this as well.

Finances After Divorce

Among the most important considerations are how best to ensure a good income stream and access to funds when needed and making adjustments in your daily living regarding them. Consulting a professional, a certified financial advisor may be helpful in this regard. In addition, unless you already have a brokerage account with an investment company (such as Merrill Lynch, Charles Schwab, etc.) that offers such services to their customers, the Family Law attorneys at Andalman & Flynn, as part of your initial consultation, can refer you to an experienced, reputable financial adviser after considering your situation. Ending your marriage in a peaceful, respectful manner with a team of professionals that will guide you through all aspects of divorce without going to Court is ideal and I give that my top priority. But if it is not possible to amicably resolve your divorce, then I am also available and very experienced in successfully litigating divorces in court.

If you have questions or need compassionate legal guidance regarding a divorce matter, please contact us.

Contact Nelson Garcia at (301) 563-6685.

About Andalman & Flynn, P.C.: Founded in 1998 in downtown Silver Spring, Maryland, Andalman & Flynn has forged a distinguished reputation for legal excellence. The firm represents individuals seeking disability benefits throughout the country and practices family law throughout Maryland and the District of Columbia. The firm focuses on cases that impact the rights of everyone and is there for clients when responsive legal help is most critical. The firm has provided legal analysis on national and local television and radio, and their attorneys often testify before legislative bodies and are routinely invited to contribute to prominent legal publications. For more information about Andalman & Flynn, please visit the website at or call 301.563.6685